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ADAMS  (JOHN)  Treatise  on  the  Princir>les  and  Practices  of  the  Action  of  Eiectment,  with 
American  Notes  and  Precedents,  by  J.  L.  Tillinghast  and  Thomas  W.  Gierke.  8vo  New- 
York,  1840. 

AMERICAN  COMMON  LAW.  A  Practical  Abridgement  of  American  Common  Law 
Cases,  argued  and  determined  in  the  Courts  of  the  several  States,  and  the  United  States 
Courts  from  the  earliest  period  to  the  present  time  ;  alphabetically  arrangred  ;  with  Notes 
and  references  to  the  statutes  of  each  State,  and  analogous  Adjudications  comprising 
under  the  Reveral  titles  a  practical  Treatise  on  the  different  branches  of  the  Common  Law, 
by  J.  D.  Wheeler,  Esq.  in  8  volumes.      1836. 

AMERICAN  CHANCERY  DIGEST,  by  Campbell  and  Cambrelleng,  and  Jacob  D. 
Wheeler,  2  vols,  containing  a  Digest  of  all  the  Chancery  Reports  of  the  several  States, 
and  of  the  United  States,  from  the  earliest  period  to  the  present  time.     New- York.     1841. 

EQU[TY  DIGEST.  An  Analytical  Digest  of  the  Equity  Cases  decided  in  the  courts  of 
the  several  states,  and  of  the  United  States,  from  the  earliest  periods,  &c.  Forming  a 
complete  Abstract  of  all  the  American  Equity  Reports,  dov/n  to  1836.  By  O.  L.  Bar~ 
hour,  and  E.  B.  Harrington,  Esis.     In  3  vols.     1839. 

A  work  hiorhly  recommended  by  Chancellor  Walworth,  Judge  Cowen,  Chief  Justice  Savage 
Professor  HofTman  of  the  Maryland  University,  Baltimore,  &c. 

Judge  Cowcn  says  of  it,  "  I  do  not  hesitate  to  say,  liiat  the  plan  cannot  be  better  executed 
than  it  has  been.     The  book  is  essentially  necessary  to  the  Clianccry  practitioner." 

ANDERSON  (EDMUND)  Les  Rop.  dt;B  Mults  Cases  en  les  temps  del  jud^s  Roign  Eliz. 
cibien  en  les  Common  Bank,  come  devant  touts  les  Judges  do  cest  RoiaJern.    London   1664. 

ANGELL  (.TOSEPH  K.)  Treatise  on  the  Common  Law  in  relation  to  Water  Courses. 
With  an  Apncndix,  containingr  the  principal  adjudged  cases.  3d  ed.  With  an  Appendix 
containing  Forms  of  Declarations.    8vo.     Boston »  1840. 


2 

ANGELL  (JOSEPH  K.)  on  Adverse  Enjoyment.  8vo.     1837. 

ANGELL  (JOSEPH  K.)  A  Practical  Summar>'  of  the  Law  of  Assignment.  12mo.  Bos- 
ton, 1835. 

ANGELL  (JOSEPH  K.)  and  AMES  (SAMUEL)  Treatise  on  the  Law  of  Private  Corpora, 
lions  Aggregate.     8vo.  2d  ed.     1841. 

ARCHBOLD'S  APPENDIX.  A  collection  of  the  forms  and  entries  which  occur  in  prac- 
tice in  tiie  Courts  of  King's  Bench  and  Common  Pleas,  in  Personal  Actions  and  Ejectment. 
By  John  Frederick  Archbold,  of  Lincoln's-Inn,  Barrister  at  Law.     1827. 

ARCHBOLD'S  (J.  F)  Summary  of  Law  and  Pleading,  and  Evidence  in  Criminal  Cases, 
with  Precedents  of  Indictments,  with  notes  by  John  Jervis.    8vo.     New- York,  1840. 

ARCHBOLD  (J.  F.)  Digest  of  the  Law  relative  to  Pleading  and  Evidence  in  Civil  Actions. 
2d  American  edition.     8vo.     New-York,  1838. 

ARCHIVES  DE  DROIT  ET  DE  LEGISLATION,  4  liv.  par  an,  formant  an  beau  vol.  in 
8,  de  500  pages.    Prix  de  I'abonnement  annuel.     1840, 

BALDWIN  (HENRY)  Reports  of  cases  determined  in  the  Circuit  Court  of  the  United 
States.Jn  and  for  the  3d  Circuit.     8vo.     Philadelphia,  1837. 

BALL,  (THOMAS)  and  BEATTY  (FR-\NCIS)  Reports  of  cases  arpued  and  determined 
in  the  High  Court  of  Chancery  in  Ireland,  during  the  time  of  Lord  ClianccUor  Manners, 
from  the  settings  after  Michaelmas  Term,  48  Geo.  3d,  1807,  to  the  sittings  after  Trinity 
Term,  51  Geo.  3d,  1811.    2  vols  in  1.     Philadelphia,  1839. 

BARBOUR  (O.  L.)  and  HARRINGTON  (E.  B.)  Analytical  Digest  of  the  Equity  Cases  in 
all  the  United  States  Courts  from  the  earliest  period,  and  of  the  Decisions  in  Equity  in 
England  and  Ireland,  since  Hillary  Term,  1822.     3  vols,  8vo.     Springfield,  1837. 

BARBOUR'S  CRIMINAL  TREATISE.  A  Practical  Treatise  on  the  Jurisdiction,  Duty, 
and  Authority  of  Justices  of  the  Peace  in  Criminal  Cases;  containing  also  a  summary  of 
the  law  relative  to  Crimes  and  Punishments  with  an  Appendix  of  Forms  of  Proceedings,  by 
Oticrr  L.  Barbour.     An  American  Work.  1841. 

BARBOUR'S  LAW  OF  SET-OFF.  A  Treatise  on  the  Law  of  Set-OfT,  with  an  Appendix 
of  Precedents.     New  York,  1841. 

BAYLEY  (.Sir  John)  Summary  of  the  Law  of  Bills  of  Exchange,  Cash  Bills,  and   Promis- 
sory Notes;  from   the  4th  London  edition,  with  Notes  by  Willard  Phillips  and  Samuel  E. 
bewail.     2d  edition.     Boston,  183G. 

BECK  (THEODRICK  R.  and  JOHN  B.)  Elements  of  Medical  Jurisprudence.  6th  edition. 
2  vols.  8vo.     Philadelphia,  1838, 

BELL  (GEORGE  JOSEPH)  Commentaries  on  the  Laws  of  Scotland,  and  on  the  Principles 
of  .Mercantile  Jurisprudence.  Advocate  and  Professor  of  the  Law  of  Scotland  in  the  Uni- 
versity of  Edinburgh,     .'iih  edition,  2  vols.     1816. 

DENTHAM,  Logislations.    4  vols,  in  18.     br.  lirux.  1840. 


3 

BENTHAM,  Tactique.     1  vol.  in  18.    br.  Brux.  1840. 

BENDLiE'S  (GULIELME)  Les  Repartes  des  Divers  Resolutions  et  Judgments  donne  par 
judges  de  la  Lay  en  le  Temps  del  Raigne  de  Hen.  8,  Edward  6th,  Phil,  and  Mar.,  1  Eliz., 
Jac.  1,  et  Car.  1.     London,  1661. 

BENTHAM  (JEREMY)  Theory  of  Legislation,  translated  by  R.  Hildreth.  12mo,2  toIs. 
Boston,  1840. 

BLAND  (THEODORE)  Reports  of  cases  decided  in  the  High  Court  of  Chancery  of|  Mary- 
land,    vol  1.     Baltimore,  1836. 

BLUNT  (JOSEPH)  Shipmaster's  Assistant  and  Commercial  Digest.     Svo.     1837. 

BOILEUX  &,  PONCELET,  Commentaries  Sur  le  Code  Civil,  etc.  2  gr.  vol.  in  8,  2  col. 
Brux.  alt.  1838. 

BOUVFER  (JOHN)  A  Law  Dictionary  adapted  to  the  Constitution  and  Laws  of  the  United 
States  of  America,  and  the  several  States,  with  References  to  the  Civil  and  other  systems 
of  P^oreign  Law.    2  vols.  Svo.     Piiiladelphia,  1840. 

BROCKENBROUGH  (JOHN  W.)  Reports  of  cases  decided  by  the  Hon.  John  Marshall,  late 
Chief  Justice  of  the  United  States  for  the  District  of  Virginia  and  North  Carolina,  from 
1802  to  1833.     2  vols.  Svo.     Philadelphia,  1837. 

BROWNE  (ARTHUR)  View  of  the  Civil  Law  and  of  the  Law  of  Admiralty,  2d  edition,  2 
vols.  8vo.     New- York,  1840, 

BURGE  (WILLIAM,  Esq.)  Commentaries  on  Colonial  and  Foreign  Laws  generally,  and 
in  their  conflict  with  each  other  and  with  the  law  of  England.    4  vols.    1838. 

BURTON  (W.  H.)  An  Elementary  Compendium  of  the  Law  of  Real  Property.  Svo.  Phila- 
delphia, 1839. 

BYLES  (JOHN  BARNARD)  A  Practical  Treatise  on  the  Law  of  Bills  of  Exchange,  Pro- 

missory  Notes,  Bank  Notes,  Banker's  Cash  Notes  and  Checks.    Svo.     Philadelphia,  1837. 

CHITTY  (JOSEPH)  A  Practical  Treatise  on  Bills  of  Exchange,  Checks  on  Bankers, 
Promissory  Notes,  Bankers'  Cash  Notes  and  Bank  Notes.  9th  American  Edition,  newly 
modelled  and  greatly  enlarged  and  improved,  and  with  references  to  the  I^aw  of  Scotland, 
France,  and  America,  and  new  chapters  on  Agents,  Partners,  Consideration,  Stamps,  Requi. 
sites,  lioss.  Times  of  Presentment,  Non-Payment,  Protest,  Bankruptcy,  Forgery,  Larceny , 
Embezzlement  and  ffalse  Pretences  ;  and  an  Appendix  of  Precedents. 

CHITTY  (JOSEPH)  Treatise  on  the  Parties  to  Actions,  the  Forms  of  Actions,  and  on 
Pleading,  with  a  second  volume  of  Precedents  of  Pleadings.     3  vols.     Springfield,  1837, 


CHITTY  (JOSEPH)  Treatise  on  Criminal  Law  ;  comprising  the   Practice,  Pleading,  and 
Evidence  in  a  Criminal  prosecution  with  a  Collection  of  Precedents.     Notes  by  Peters^and 
Hunti 
1836. 


„^.,„„  ,.. _.  pr _- 

Hunting-ton,  and  references  to  American  Cases  bv  J.  C.  Perkins.    3  vols.  Svo.     Brookfield, 


CHITTY  'JOSEPH;  Practice  of  the  Law  in  all  its  departments.  4  vols.  8vo.  Philadel- 
phia, 1834—9. 

CHITTY  (JOSEPH)  Practical  Treatise  on  Medical  Jurisprudence.  8vo.  Philadelphia, 
1836. 

CHITTY  (JOSEPH  Ju.n.)  Precedents  in  Pleadings,  with  copious  notes  on  Practice,  Plead- 
ing and  Evidence;  Edited  by  Henry  Pearson  and  TliompsonChitt)'.  2  vols.  8vo.  Spring- 
field, 18  39. 

CHITTY  (JOSEPH  Jvs.)  Practical  Treatise  on  the  Lav?  of  Contracts  not  under  seal, 
and  upon  the  Usual  Defences  to  Actions  thereon.  Notes  by  J.  C.  Perkins,  4th  American 
Edition.     8  vo.     Springfield,   1839. 

CLANCY  (JAMES)  A  Tj-eatisc  on  the  Rights,  Duties,  and  Liabilities  of  Husband  and 
Wife,  at  Law  and  in  Equity.    2d  American,  from  the  last  London  edition.    New-York,  1837. 

COLLYER  (JOHN)  Practical  Treatise  on  the  Law  of  Partnership,  with  Notes  of  American 
Cases,  by  Willard  Phillips  and  Edicard  Pickering.     8  vo.     Springfield,  1839. 

COVENTRY  (THOMAS)  On  Conveyancer's  Evidence.     8  vo.     Philadelphia,  1839, 

COWEN'S  REPORTS.  Reports  of  Cases  argued  and  determined  in  the  Supreme  Court 
and  in  the  Court  for  the  Trial  of  Impeacliments  and  the  Correction  of  Errors  of  the  State 
of  New  York,  from  1823  to  1830  in  9  volumes. 

CROSS  (TRUEMAN  COL.)  Military  Laws  of  the  United  States,  including  those  relating 
to  the  Marine  Corps.     2d  Edition.     8  vo.     Washington,  183S. 

CURTIS  (GEORGE  F.)  A  Digest  of  Cases  Adjudicated  in  the  Courts  of  Admiralty  of  the 
United  Slates,  and  in  the  High  Court  of  Admirality  in  England,  together  with  Komc  Topics 
from  the  Works  of  Sir  Leoline  Jenkins,  Judge  of  the  Admiraltj^  in  the  reign  of  Charles  2d, 
with  a  copious  Index.     8  vo.     Boston,  1839. 

CURTIS  (GEORGE  F.)  The  American  Conveyancer,  containing  a  large  Variety  of  Legal 
Forms  and  Instruments  adapted  to  popular  wants  and  professional  use.  12  mo.  Boston, 
1839. 

CODES  (LES   CINQ). 

Par  Loiseau,  1  vol.  in  8  rel.  Pa.  1840. 
1  vol.  in  18  rel.  Pa. 
1  vol.  in  32  rel.  Pa. 

COMTE. 

Traitd  de  Legislation,  1  vol.  in  8,  br.  Brux.,  1817. 

COWEN'S  CIVIL  TREATISE  on  the  Duties  of  Justices  of  the  Peace,  2  vols.,  2d  edition, 
much  improved,  1841. 

DEAN'S  LAW  MANUAL.  A  maniial  of  Law  for  the  use  of  business  men;  containing, 
alphabetically  arranged,  the  legal  principles  of  most  frequeni  application  to  ordinary  business 
transactionB,  together  with  references  to  aufiioritics  sustaining  them,  hy  Amos  Dean.  1838. 


I)OMA.T  (J.)  Civil  Law  in  its  natural  order,  together  with  the  Public  Law,  translated  into 
English  by  Wm.  Strahan,  with  remarks  on  some  differences  between  the  Civil  Law  and 
Ihe  Law  of  England.     2  voh.     London,  1722. 

DONELLI,  Hugonis  Juris  Consult!  Commentarii  ad  codicis  Justinianii.     Leyden,  1587. 

DUDLEY  (G.  M.)  Reports  of  Decisions  made  by  the  Judges  of  the  Supreme  Courts  of  Law 
and  Chancery  of  the  State  of  Georgia,  1  vol.     8  vo.     New- York,  1837, 

DUPIN  (AINE). 

Lettres  sur  la  profession  d'avocat,  1  vol.  g.  in  8.     Brux.  1838. 

EDEN  ON  INJUNCTIONS.  A  Treatise  on  the  Law  of  Injunction  by  Hon.  Robert  Haw- 
ley  Eden,  second  American  Edition,  with  American  Notes  and.  References  by  Jacob  D. 
Wheeler,  Esq. 

EDWARD'S  VICE-CHANCERY  REPORTS.  Reports  of  Cases  decided  in  the  first  cir- 
cuit  of  (he  State  of  New  York,  by  the  Hon.  William  T.  McCoun,  Vice-Chancellor,  in 
3  volumes. 

ELLIOTT  (JONATHAN)  American  Diplomatic  Code,  embracing  the  Treaties  and  Con- 
ventions between  the  United  States  and  Foreign  Powers  from  1778  to  1834.  2  vols,  8  vo. 
Washington,  1834. 

EMERIGON  (BALTHAZARD— MARIE),  Essay  on  Maritime  Loans,  translated  by  John 
E.  Hall,  with  an  Appendix.     8  vo.     Baltimore,  1811. 

EMERIGON  (BALTHAZARD— M.A.RIE)  Traite  des  Assurances  et  des  Contrats  a  la 
Grosse,  2  vols.     4to.     Marseilles,  1783. 

ENGLISH  COMMON  LAW  REPORTS,  being  Reports  of  Cases  in  the  English  Courts  of 
Common  Law  from  1813  to  1830,  edited  by  Thomas  Sergeant  and  John  C.  Lowber,  of  the 
Philadelphia  Bar.  37  vols.     8  vo.     1822—41. 

GILPIN  (H.  D.)  Reports  of  the  District  Court,  United  States,  of  the  Eastern  District  of 
Pennsylvania,  1828—1835.     8  vo.     Philadelphia,  1837, 

GIRAUD  (M.  CH.)  Elemens  de  Droit  Romain  par  Heineccius  Traduits  Annotes,  Carrigea 
et  precedes  D'une  Introduction  Historique.     8  vo.  2  vols.     Paris,  1835, 

GOULD  (JAMES)  Treatise  on  the  Principles  of  Pleading  in  Civil  Actions,  8  vo.  New. 
York,  1836. 

GOULD'S  PLEADING.  A  Treatise  on  the  Principles  of  Pleading  in  Civil  Actions,  by 
James  Gould.     Second  Edition,  revised  and  corrected  by  the  Author.     1  vo. 

Extract  of  a  letter  fro?n  Chief  Justice  Marshall,  dated, 

RicHMOxND,  Dec.  3d,  1832. 
"I  have  read  the  work  tlirough  with  advantage  to  myself,  and  with  some  surprise  at  find- 
ing that  a  subject  which  has  employed  so  many  pens,  should  still  admit  of  being  presented  in 
a  form  that  may  make  the  book  an  acquisition  certainly  to  the  law  student,  and  indeed  to  the 
profession.     You  have  well  arranged  the  matter  belonging  to  the  subject,  and  have  succeeded 


in  your  design  of  presenting  it   "as  a  system  of  consistent   and   rational  principles,   adapted 
with  the  utmost  precision  to  the  administration  of  justice,  according  to  uniform  rules." 

By  sliowing  the  reason  of  the  rule  plainly,   the  rule   itself  becomes  more  intelligible  to  the 
student,  and  will  more  certainly  adiicre  to  his  memory. 

Allow  me  to  repeat  my  tlianks  for  the  gratification  afforded  me  by  the  perusal  of  your  work, 
and  to  assure  you  that  I  am  with  very  great  respect, 

Your  obliged  and  obedient  servant, 

J.  MARSHALL. 

Extract  of  a  letter  from  Chief  Justice  Spencer,  dated, 

Albany,  Dec.  27th  1832. 
If  my  opinion  is  entitled  to  any  consideration,  it  is,  that  you  have  given  to  the  profession  a 
work  evidently  useful  ;  and,  I  may  add,  have  supplied  what  was  wanting — a  logical  and  Bci- 
entific  treatise  on  a  most  essential  part  of  legal  science.  It  has  always  been  my  opinion, 
that  no  man  could  be  an  accomplished  lawyer  unless  he  was  thoroughly  imbued  with  the 
learning  of  Pleading. 

With  sentiments 'of  high  esteem  and  respect. 

Yours  Sincerely, 

A.  SPENCER. 

GRAHAM  (DAVID)  Essay  on  New  Trials.     8  vo.     New-York,  1834. 

GRESLEY  (RICHARD  NEWCOMB)  Treatise  on  the  Law  of  Evidence  in  Courts  of 
Equity.     8  vo.     Philadelphia,  1837. 

GROTIUS  (HUGO)  De  Jure  Belli  ac  Pacis ;  Mare  Liberum  ac  Libellum  de  ^quitate,  etc, 
cum  Notis,  cura,  J.  Barbeyrac.     8  vo.     Amst.  1735. 

GROTIUS  (HUGO)  Le  Droit  de  la  Guerre  et  de  la  Paix,  trad,  par  .T.  Barbeyrac,  avec  des 
Notes.     2  vols.,  4  to.     Amsterdam,  1724. 

GROTIUS  (HUGO)  Rights  of  War  and  Peace,  translated  from  the  Latin,  Notes  by  J. 
Barbeyrac.    I^ondon,  1738. 

HALE  (SIR  MATTHEW)  History  of  the  Pleas  of  the  Crown,  published  from  his  MSB., 
by  Solotnoii  Einlyn,  2  vols.     London,   1736. 

HALE  (SIR  MATTHEW)  History  of  the  Common  Law  of  England.  8  vo.  London, 
1716. 

HAMMOND  (CHARLES)  Cases  in  the  Supreme  Court  of  Ohio.  In  Bank  at  December 
Term,  1837.     Vol.  8.     Columbus,  1838. 

HAMPDEN'S  CASE  OF  SHIP  MONEY.  Argumcntfl  of  Sir  Rd.  Ilutton  and  Sir  Geo. 
Crokc  in  the  case  of  The  King  against  John  Hampden.     4  to.     London,  1641. 

HARRISON  (S.  B.)  Digest  of  all  tU  Reported  Cases  in  the  House  of  Lords  and  the 
(;()uris  of  Common  Law,  from  Mich  Term  1756,  to  Mich.  Term  1834.  3  vola.  8  vo. 
Philadelphia,  1835. 

HILT-TARD  (FRANCIS)    Digest  of  Pickdnnn's   Reports.     Vols.    8—14.     8   vo.     Boston, 

l-.-JT. 

HHJJARD  ^FRANCIS)  An  Abridgement  of  the  American  Law  of  Real  Property.  8  vo. 
2  vols.     Bobton,  1836. 

"The  task  Mr.  Hilliard  imposed  upon  himself  was  one  of  great  toil,  and  he  has  resolutely 


and  manfully  j(erformcd  i,t,  evincing^  a  patience  of  labor,  worthy  of  the  students  and  jurists  of 
a  former  age;  and  he  may  fairly  felicitate  himself  as  having  completed  a  work  creditable  to 
himself,  and  of  great  practical  utility  to  the  profession,  throughout  our  whole  country.  The 
lawyer  will  find  here  brouglit  into  the  compass  of  two  reasonable  volumes,  a  vast  amount  of 
matter,  gathered  from  many  camel-loads  of  text  books,  reports,  and  statutes  correctly  stated  ; 
and  should  he  desire  to  pursue  his  investigations  further,  he  will  find  himself  by  the  author's 
assistance,  in  the  way  to  do  it  easily  and  expeditiously."     American  Jurist. 

HOFFMAN'S  (M.  De)  Guide  Diplomatique,  ou  Traite  des  Droits  des  immunites  et  des 
Devoirs  des  Ministres  Publics  des  agens  Diplomatiques  et  Consulaircs.  8  vo.  3  vols. 
Brussels,  1838. 

HUGO,  Histoire  du  Droit  Romain,  1  vol.  in  8.     Brux.  1840. 

JOHNSON  (WILLIAM)  Digest  of  Cases  in  the  Supreme  Court  of  Chancery  and  the 
Court  of  Errors  at  New  York,  from  1799  to  1836.     3  vols,  in  2.  8vo,    Philadelphia,  183.8. 

KENT'S  COMMENTARIES  ON  AMERICAN  LAW— By  James  Xenf.  4  vols.  New 
York,  1840.  4th  edition. 

KINNE'S  BLACKSTONE.  The  most  important  parts  of  Blacksfone's  Commentaries 
reduced  to  questions  and  answers — by  Asa  Kinne.  One  volume,  second  edition,  improved 
and  enlarged,  with  Index  and  Glossary.     New  York,  1839. 

This  compilation  has  received  the  approbation  of  Chancellors  Walworth  and  Kent  of  New- 
York,  Chief  Justice  Cranch  of  Washington  City,  Chief  Justice  Williams  of  Vermont,  Chief 
Justice  Weston  of  Maine,  Chief  Justice  Tucker  of  Virginia,  Mr.  Justice  Story  of  Cam6ridge 
University,  Ovid  F.  Johnson,  Attorney  General  of  Pennsylvania,  R.  S.  Field,  Attorney 
Genera!  of  New  Jersey,  Hon.  Judges  Peters,  Jones,  Bouvier,  and  Conrad  of  Philadelphia, 
Hon.  Lucas  Thompson  of  Staunton  Va,,  Peter  S.  Duponceaux,  Wm.  L.  Hurst,  David  Paul 
Brown,  and  Joseph  R.  Ingersol,  Esqs.  of  Philadelphia,  President  John  Tyler,  &c. 

Extract  of  a  letter  from  Peter  S.  Duponceau  of  Philadelphia. 

"  It  is  a  handsome  panorama  of  a  grand  edifice — it  will  be  of  great  use  to  students  par- 
ticularly in  preparing  for  their  examination,  and  also  in  their  subsequent  readings  of  the 
original  work,  in  pointing  out  to  them  the  parts  to  which  their  attention  should  be  specially 
directed — it  will  also  be  useful  to  practising  lawyers — not  only  as  a  good  index,  but  as  a 
refresher  of  the  memory." 

PETER  S.  DUPONCEAU, 

From  Judge  Bouvier  of  Philadelphia. 

"  The  plan  you  have  adopted  cannot  but  be  useful  to  students,  who  wish  to  become 
masters  of  Biackstone's  Commentaries,  and  it  will  also  be  useful  to  their  preceptors,  furnish- 
ing them  with  a  convenient  key." 

JOHN  BOUVIER. 

From  Chancellor  Kent. 

It  cannot  but  be  useful,  and  your  book  will  excite  and  promote  the  study  of  the  volumes  at 
large  and  promote  the  knowledge  of  legal  principle. 

JAMES  KENT. 

KINNE'S  KENT.  The  most  important  parts  of  Kent's  Commentaries  on  American  Law, 
reduced  to  questions  and  answers. — By  Asa  Kinne.  2d.  edition,  with  an  Index  and  Glos- 
sary.— The  bench  and  bar  in  the  United  States  have  given  the  most  flattering  testi 
menials  in  favor  of  this  publication. 


8 

Extract  of  a  letter  from  Chancellor  Kent  to  the  Author. 

"  I  am  much  pleased  with  the  ability,  fidelity,  and  accuracy,  with  which  you  ha%-c  stated 
the  answers  as  drawn  from  the  text.  I  approve  of  tlic  work  and  wish  it  success,  for  I  think 
it  is  well  calculated  to  facilitate  and  promote  the  study  and  diftusion  of  the  elementary  prin- 
ciplcsof  constitutional  and  municipal  law  embodied  in  the  commentaries." 

JAMES  KENT. 

KINNE'S  LAW  COMPENDIUM.     Questions  and  answers  on  law,  alphabcticaiiy  arranged, 
with  reference  to  the  most  approved  authorities. — By  Asa  Kinne.     Two  volumes. 

A  work  of  which  the  plan  arrangement  and  execution,  have  received  the  highest  com 
mendation  from  many  of  the  most  distinguished  jurists  in  the  United  States. 

Extract  of  a  Letter  fiom  James  S.  Austin  Esq.  Attorney  General  of  the  State    of 

Massachusetts. 

I  have  examined  this  work  to  some  extent  and  have  been  greatly  satisfied  with  its  plan 
and  execution.  The  manner  of  presenting  the  subject  to  the  mind  by  a  direct  question  is 
exceedingly  well  calculated  in  my  judgment  to  produce  a  clear  and  exact  impression,  espe- 
cially in  a  science  like  the  law,  in  which  precision  and  accuracy  are  indispensible. 

The  answers  given  are  full  and  explicit,  and  fortified  b}'  an  exhibition  of  authority  which 
demonstrate  the  industry  and  learning  with  which  the  work  has  been  prepared. 

I  cannot  doubt  that  it  will  be  well  received  by  the  profession  and  be  found  useful  to  the  public. 

JAMES  S.  AUSTIN. 

From  David  Paul  Brown  Esq.,  Philadelphia. 

I  have  examined  your  work  and  am  happy  to  say  it  will  be  an  exceedingly  useful  one,  and 
undoubtedly  will  contribute  much  to  diminish  the  vexations  and  difficulties  peculiarly  incident 
to  nisi  prins  trials. 

It  imparts  all  the  advantages  of  an  accurate  and  well  arranged  note  book,  while  it  saves  1o  the 
profession  a  vast  deal  of  time  and  labor.  Give  me  a  fulcrum,  said  Archimedes,  and  I  can 
raise  the  earth,  give  man  time  or  save  it  for  him  and  for  worldly  purposes  he  has  little  else  lo  ask. 

DAVID  PAUL  BROWN, 

Frotn  Chief  Justice  Williams  of  Vermont. 

The  utility  of  a  work  of  this  kind  depends  upon  the  accuracy  with  which  it  is  compiled. 

From  the  attention  I  have  been  able  to  give  it  I  should  think  you  had  bestowed  much 
labor  and  mdustry  upon  the  work  and  that  the  answers  are  faithfully  and  accurately  digested 
from  the  licvcral  books  to  which  reference  is  had,  and  that  it  will   be  u.scful  to  the  profession. 

CHARLES  K.  WILLIAMS. 

From  Richard  Peters  Esq.  Philadelphia. 

I  am  greatly  pleased  with  the  plan  of  the  book.  It  will  afford  to  the  student,  great  facili- 
ties and  advantage  in  the  progress  of  his  studies  ;  to  the  profession  in  general  it  will  be  highly 
useful. 

You  appear  to  have  collected  with  great  diligence  and  accuracy  the  cases  decided  on  the 
points  picBcntcd  bv  your  questions,  and  to  have  very  ably  advanced  the  subjects  to  wiiich 
those  qucplions  apply. 

I  have  examined  some  of  the  references  to  the  cases  in  the  Circuit  and  Supreme  Courts 
reported  by  mo,  and  with  pleasure  avouch  their  fidelity. 

RICHARD  PETERS. 

From  Hon.  D.  B.  Tallmadgc,  Judge  of  the  Superior  Court,  City  of  New  York. 

The  plan  of  the  work  will  make  it  a  useful  and  convenient  book  of  reference,  especially 
at  Nmi  I'riuH. 

Tlic  part  of  the  work  I  have  looked  over  most  particularly  is  that  entitled  Corporations, 
which  appears  to  mc  lo  be  accurately  digested. 

DAN'L.  D.  TALLMADGE. 


From  Judge  Bouvier,  Philadelphia. 

I  have  examined  the  work  and  do  not  hesitate  to  say  it  will  be  highly  useful  to  students 
and  profissioiial  men  generally.  The  plan  is  calculated  to  impress  the  memory  by  calling 
the  attention  to  a  single  point  which  perhaps,  would  have  escaped  observation. 

I  have  fou.id  it  correct  in  giving  the  answers,  and  the  references  which  are  made  cannot 
fail  to  be  useful  in  makmg  further  research. 

J.  BOUVIER. 

From  William  L.  Hurst,  Esq.  Philadelphia. 

I  have  examined  the  work  with  great  pleasure.  It  is  calculated  to  be  a  greater  help  to 
the  student  than  any  other  boi>k  of  its  size  extant,  and  will  find  its  way  upon  every  lawyer's 
table  as  a  valuable  ready  reference.  The  authorities  are  concentrated  upon  the  questions  so 
skillfully,  that  besides  the  advantage  peculiar  to  this  vvcrk  of  presenting  the  decisions  of 
English  and  American  cases  at  a  glance,  tl.ere  is  as  much  reference  as  in  a  digest  of  quad- 
ruple Its  size. 

WILLIAM  L.  HURST. 

From  Ovid  F.  Johnson,  Attorney  General,  Philadelphia. 

I  have  examined  with  some  considerable  care  several  of  the  leading  heads  of  this  compila- 
tion, and  have  also  glanced  at  the  entire  plan  of  the  work,  and  do  not  hcsitaie  to  say  that  it 
seems  to  be  executed  with  accuracy,  and  on  a  general  plan  eminently  calculated  to  simplify 
and  facilitate  the  means  of  acquiring  a  knowledge  of  the  law.  I  think  it  will  be  a  useful 
book  not  only  to  the  legal  profession  but  lo  students  and  to  the  public  at  large. 

OVID  F.  JOHNSON. 

LAWS  OF  THE  UNITED  STATES  OF  AMERICA,  from  the  4ih  of  March,  1833  to 
the  3d  of  March.  18  O,  including  all  the  Treaties  negotiated  and  ratified  within  that 
period.     Volume  9.     1833. 

« 

LIEBER  (FRAXCTS)  Manual  of  Political  Ethics,  for  the  use  of  Colleges  and  Students  at 
Law.     8  vo.     2  vols.     Boston,  1838 — 10. 

"  I  beg  leave  to  say,  without  moaning  any  formal  compliment  whatever,  that  your  Manual 
of  Political  Ethics  is  a  profound  work,  full  of  deep  reflection,  solid  principle,  and  sound  and 
apposite  illustrations.  I  have  read  it  over  snperficiallv,  but  I  have  begun  and  have  far  ad- 
vanced in  the  study  of  it  with  notes.  I  think  your  ethical  and  political  principles  just  and 
admirable  ani  most  instructive  as  to  rights,  duties,  property,  social  relations,  government, 
sympathy,  &.C.,  &.C.,  and  I  hope  and  intend  to  make  mvself  familiar  with  your  work  as  a  text 
book." 

JAMES  KENT. 

LAW  OF  SET-OFF,  by  Oliver  F.  Barhour.     Albany,  1841. 

LIEBER  (FRANCIS)  Legal  and  Political  Hermeneulics,  or  Principles  of  Interprofation 
and  construction  in  Law  and  Politics,  with  remarks  on  Precedents  and  Authorities,  enlarged 
edition.     12  mo.     Boston,  1839. 

LERMINIER  Introduction  a  I'etude  du   Droit,  1839. 

LONG  ON  SALES— A  Treatise  on  the  Law  relative  to  Sales  of  Personal  Pronerty,  by 
Gpiorge  Long  Esq.,  Barrister  at  Law.  2d  American  edition,  with  additions  by  Benjamin 
Rand,  Esq.     Boston,   1839. 

LUBE'S  EQUITY  PLEADINGS.  An  Analysis  of  the  Principles  of  Equity  Pleeading  ; 
containing  a  compeiuliurn  of  the  Practice  of  the  High  Court  of  Chancery  and  the  Founda- 
tion  of  its  Rules,  together  with  an  illustration  of  the  anal'iofy  between  Plead  n<r  at  Com- 
mon  Law  and  in  Equity.  Bv  D  O.  L'ihe,  Esq.  of  Lincoln's  Inn.  With  American  Notes, 
by  Jacob  D.  Wheeler.    1  VoL     New  York,  ISiO. 

3 


10 

MACOMB  (ALEXANDER)  The  Practice  of  Courts  Martiil.-    8  vo.     New- York,  1840. 

MANSELL  (GEORGE  B.)  Treatise  on  the  Law  and  Practice  of  Demurrerto  Pleading 
and  Evidence.     8  vo.     Philadelphia,  1839. 

METCALF  (TIIERON)  and  PEEKrNS  (J.  C.)  Digest  of  the  Decisions  of  the  Courts  of 
Common  Law  and  Admiralty  in  I  he  United  States,     vol.  1.     Boston,  1840. 

This  work  will  be  completed  in  3  vols',  vol.  2  is  now  in  press. 

"  AVe  think  it  is  not  extravagant  to  say,  that  this  work  will  be  to  the  United  States  what 
Comyn's  Digest  has  been  and  is  to  England." — American  Jurist. 

MONTESQUIEU  (C.  de  SECONDAT)  CEuvrcs  completes  avcc  des  Notes  de  Dupin, 
Cuvier,  Voltaire,  Mably,  Servan,  and  La  Harpe.     Royal  8vo.     Paris,  1838. 

MUIILENBRUCH,  Doctrina  Pandectarum.     1  gr.  vol.  2,  col.     br.  Brux. 

MUHLENBRUCH,  Delectus  legumqucc,  etc.     1  vol.  in  8.     br.  Brux.  1839. 

NEW.HAMPSIIIRE  REPORTS.  Cases  in  the  Supreme  Court  from  1816  to  1832. 
8  vols.     Lxeter,  Concord,  Chester,  and  Newport,  1819-1833. 

NEW-YORK  DIGEST,  2  or  4  vols.  A  Digest  of  all  the  New- York  Common  Law  Reports, 
from  the  earliest  period,  to  and  including  vol.  21  of  Wendell's  Reports.     JNcw-York,  1841. 

OHIO  REPORTS  of  Cases  at  Law  and  in  Chancery,  decided  by  the  Supreme  court  during 
the  years  1831-2-3-4,  by  John  C.  Wright,  late  Judge  in  said  court.    8vo.     Columbus,  1835. 

OHIO  REPORTS,  by  Hammond.     Vols.  5,  (J,  7,  8.    Cincinatli,  1838. 

ORFILA  (M.)  Traite  de  Medecine  Legale,  3d  edition.  4  vols.  8vo,  and  Atlas,  4to.  Paris, 
183«. 

PAIGE  (ALONZO  C.)  Reports  of  Cases  in  the  Courts  of  Chancery  of  New- York,  from 
182a  to  1S39.     7  vols.  8vo.     New-York,  1830-36. 

PAILLET  (M.)  Legislation  ct  Jurisprudence  des  Successions.    3  vols.  8vo.     Paris,  1816. 

PAILLET  (M.)  Manual  de  Droit  Frangais.     8vo.     Paris,  1813. 

PARAUT  (M.)  Lois  de  la  Presse  en  1836,  ou  Legislation  Actuelle  sur  L'Imprimerie  et  la 
Librarie.    bvo.     Paris  1836. 

PETEIt.S  ('RICHARD;  Adinirally  decisions  in  the  District  Court  of  Pennsylvania,  with  an 
Ajipendix  coniaining  ihc  Laws  of  Oleron,  of  Wibburg,  of  the  Hanse  Towns,  &,c.,  &.c.  2 
vols.  bvo.     Philadelphia,  lfc07. 

PETFRS  (RK'HAKD.)  A  Full  and  Arranged  Digest  of  Cases  decided  in  the  Supreme, 
Circuit,  and  i)iHiricl  Courts  of  the  United  Slates,  from  the  organization  to  1840.  3  vols. 
8vo.     lf^-i-40. 

PETERS  f  RICHARD,  Jr.)  Reports  of  Cases  in  the  Supreme  Court  of  the  United  StatoB 
frum  ItL'cl  to  lfc41.     15  vols.  Ovo.     Philudclphia,  lb28-ll. 


11 

PETERS  (RICHARD,  Jr  )  Condensed  Reports  of  Cases  in  the  Supreme  Court  of  the 
UniicU  Slates,  from  its  organization  lo  1&27.     8vo.    Jfhiladelphia,  1g3U-35. 

PHILLIPP'S  LAW  OF  EVIDENCE,  4  volumes,  fourth  American,  from  the  last  and  much 
improved  English  edition,  with  extensive  notes  and  references;  Edited  by  Hon.  Judge 
Coweii  and  Nicholas  HiJl,  Junior,  Escj.,  Counsellor  at  Law,  la41. 

PICKERING  (OCTAVIUS)  Reports  of  Cases  in  the  Supreme  Judicial  Court  of  Massa- 
chusetts  from  1b22  to  lci40.     22  vols.  8vo.     1824-40. 

PORTER  (BENJAMIN  F.)  Reports  of  Cases  at  Law  and  in  Equity,  in  the  Supreme  Court 
uf  Alabama.     8vo.  vol.  2d.     '1  uscaloosa,  1836. 

PORTER  (BENJAMIN  F.)  Reports  of  Cases  argued  and  adjudged  in  the  Supreme  Court  of 
Alabama,  commencing  in  1834.     8vo.  7  vols,     Tuscalooba,  1835-9. 

POTHIER  (R.  J.)  Treatise  on  the  Law  of  Obligations  or  Contracts,  translated  from  the 
French,  with  an  Introduction,  Appendix,  and  Notes,  illustrative  of  tiie  English  Law  on 
the  subject ;  by  W  ilham  David  Evans.     2  vols.  8vo.    Philadelphia,  1840. 

POTHIER  (R  I)  Treatise  on  the  Contract  of  Sale,  Translated  from  the  French,  by  L.  S. 
Cashing.     8vo.     Boston,  1839. 

PUFFENDORF  and  GROTIUS.  Le  Droit  de  la  Nature  et  des  Gens  ou  Sysleme  general 
des  Principes  las  plus  iniporlansde  la  Morale,  de  la  Jur  sprudence,  et  de  la  Petitique.'  Le 
droit  de  la  Guerre  et  de  la  Paix.  Nouvelle  Traduction,  par  Jean  Barbeyrac,  et  avec  notes, 
par  le  tradacleur.     5  vols.  4to.     Basil,  17-16. 

REGISTRUM,  BREVIUM  TAM  ORIGNIALIUM  QUAM  JUDICIALIUM,  4th  edition. 

London,  1687. 

REVOUARD  (A.  C.)  Traite  des  Droits  D'Auteurs  dans  la  Litterature,  les  Sciences  et  les 
Beaux-Arts.     8vo.  2  vols.     Paris,  1839, 

REVISED  STATUTES  OF  THE  STATE  OF  NEW. YORK,  including  Statuary  Provi. 
sions  of  a  general  nature  passed  from  1828  to  1835,  inclusive,  and  all  the  acts  of  General 
Interest,  passed  1836.     3  vols.  8vo.     Albany,  1836. 

RIGHTS  AND  DUTIES  OF  MERCHANT  SEAMEN,  by  George  Ticknor  Curtis,  of 
the  Boston  Bar.     Boston,  1841. 

SAVIGNY,  Traite  de  la  possession.    1  vol.    1839. 

SELWYN  (WILLIAM)  Abridgment  of  the  Law  of  Nisi  Prius,  with  Notes  by  Henry 
Wheaton,  4th  American,  from  7th  London  edition.     2  vols.  8vo.     Philadelphia,  1839. 

SERGEANT  (THOMAS)  Land  Law  of  Pennsylvania.    8vo.     Philadelphia,  1838. 

STEVENS  (ROBERT)  and  BENECKE  (WILLIAM)  Treatise  on  average  and  adjust 
meat  of  losses  in  Marine  Insurance,  with  notes  by  Willard  Phillips,  Esa  ,  1833. 


12 

STOCK  ^T.  S.)  Practical  Treatise  on  the  Law  of  Non  Compos  Mentis,  or  Persons  of  Un- 
sound Mind.     Svo.    Peiladelphia,  1839. 

STORY  (JOSEPH)  Commentaries  on  the  Law  of  Bailments,  with  illustrations  from  the 
Civil  and  the  Foreign  Law.    8vo.  2d  edition.     Boston,  1840. 

STORY  (JOSEPH)  Cnmmcntaries  on  the  Constitution  of  the  United  ?^ta»es,  with  a  prelimi- 
nary Review  of  the  Constitutional  History  of  the  Colonies  and  the  States,  before  the  adop- 
tion of  the  Constiiut  on.     3  vols  bvo.     Boston,  1833. 

In  a  notice  of  the  Commentaries  on  the  Constitution,  in  the  French  Rei-uc  Elranircre  the 
Pevicwer  says,  "The  author,  with  the  care  and  sagracify  which  characlerises  him,  has  used 
all  the  best  documents  extant,  and  arrangfed  with  remarkable  method,  the  vast  body  of  mate- 
rials illustrating  liis  subject,  and  has  discussed  with  {rreat  power  and  visror  all  the  tjreat  theo- 
ret'pal  and  practical  questions  which  grow  out  of  the  political  system  of  the  United  States." 
—Rerue  Etratigere. 

STORY  /"JOSEPH)  Commentaries  on  the  Conflict  of  Laws,  Foreign  and  Domestic.  Bvo. 
2d  edition,  much  enlarged.     Ifi-lO. 

Dnrtor  Story's  work  is  altoaether  of  ro  excellent  a  description,  and  betokens  a  mind  so  im- 
bned  with  the  purest  principles  of  leg-al  philosophy,  that  it  on?ht  to  be  in  the  hands  of  every 
person  who  aims  at  stndvinqr.  in  an  intel'igrent  way,  the  higher  departments  of  professional 
knowledge." — Edinburgh  Law  Journal,  No.  11. 

STORY  (JOSEPH)  Commentaries  on  Equity  Jurisprudence,  as  administered  in  England 
and  America.  2  vols.  8vo,  2d  edition.     Boston,  1841. 

STORY  (JOSEPH)  Commentaries  on  Equity  Pleadinsrs  and  incidents  thereto,  according  to 
the  practice  of  the  courts  of  Equity  of  England  and  America.  Second  Edition,  8  vo. 
Boston,  1838. 

STORY  (JO.'JEPH)  Commentaries  on  the  Law  of  Agency  as  a  branch  of  Commercial  and 
Maritime  Jurisprudence,  with  occasional  illustrations  from  the  Civil  and  Foreign  Law, 
8vo.     Boston,  1839. 

STORY  (JOSEPH)  On  Partnership. 

VATTEL.  Droit  des  gens  ou  principes  de  droit  nafurel,  Nouvelle  edition,  augmentee  d'un 
Iroisimc.     Vol.  in  -8.  br.    Brux.  atl.,  lc!39. 

WENDELL'.'"^  REPORTS.  Keports  of  Cases  argued  and  determined  in  the  Supreme 
Court  of  Judicature  and  in  the  Court  for  the  Correction  of  Errors  of  the  State  of  New 
York,  from  1828  to  1841,  in  24  Volumes. 

WARREN'S  LAW  STUDIES,  by  Samuel  Warren  of  The  Inner  Temple.    New- York,  1837. 

The  foregoing  form  but  a  small  part  only  of  the  general  assortment  of  Law  Books  pub- 
lished and  for  sale  by  Gould,  Banks,  &,  Co.,  No  144  Nassau  Street,  New- York,  and  Wm.  &c 
A.  Gould  &,  Co.,  No.  104  State  Street,  Albany,  N.  Y.,  who  have  always  on  hand  the  Stan- 
dard English  Reports  and  Digests,  and  every  treatise  on  particular  subjects,  together  with  the 
Tarioun  Slate  Reports  and  Digests,  and  a  gcncra.1  aBsortmcnt  of  Law  Books  of  every  de- 
<tription 


APPENDIX 


TO 


KINNE'S    LAW   COMPENDIUM 

No.  I. 


QUESTIONS  AND  ANSWERS 


LAW. 

ALPHABETICALLY    ARRANGED, 


WITH 


REFERENCE  TO  THE  MOST  APPROVED  AUTHORITIES. 

i 


BY 


ASA  KINNE 


/ 

K  6  z  3  1  c| 


sw 


pp 


Entered 
According  to  the  Act  of  Congress,  in  the  year  1842,  by 
ASA   K  1  N  N  E  , 
In  the  Clerk's  Office  of  the  District  of  Columbia, 


217  9 /a 


CONTENTS  OF  APPENDIX  NO  I. 


ABATEMENT,  .  . 

Pleas  to  the  jurisdiction, 

Plea  relative  to  the  person  of  the  plaintiff, 

Alien,  ..... 

Plea  to  the  jurisdiction  of  the  person  of  plaintiff — Death  of 

plaintiff,  .... 

Infancy  of  plaintiff, 

Lunacy,  ..... 

Death  of  defendant,        .... 
Non-joinder  of  plaintiff,  . 

Non-joinder  of  defendant,"*"' 
Misnomer,      ...  .  . 

Qualities  of  plea  in  abatement. 
What,  when,  and  how  pleaded  in  bar,  or  abatement — Mode  of 

pleading,  &c., 
Defective  or  improper  service  of  writ,  &c., 
Judgment,  ..... 

Supreme  court  of  the  United  States, 

ACCIDENT, 

ACTS  OF  LEGISLATURES  IN  SEVERAL  STATES, 
ADJOURNMENT  OF  CONGRESS.— WHEN  AND  HOW 

MADE,  ....  .  . 

ADJOURNMENT  OF  SUPREME,  CIRCUIT,  AND  DIS- 

TRICT  COURTS  OF  THE  U.  STATES, 

ALIEN, 

AJVIBASSADORS, 

ARREST, 

Sheriff's  authority  for  breaking  open  doors  in  order  to  make  an 

arrest ;  and  what  will  constitute  an  arrest. 
Exemption  from  arrest,  including  privilege,  and  who  may  be 

arrested,  second  arrest  for  the  same  cause  of  action, 

authority  to  make  an  arrest,  &c.. 
Arrest  in  criminal  cases — Who  may  be  arrested, 
In  what  cases  an  arrest  may  be  made, 

ASSIGNMENT, 

Voluntary  assignment  by  debtors  for  benefit  of  creditors, 
Release,  ...... 

Sureties,  &,c.,      ...... 

Right  of  debtor  to  make  an  assignment. 

Decision  of  the  supreme,  circuit,  and  district  courts  of  the 

United  States, 
Partnership  property,      .... 
Right  of  debtor  to  prefer  one  creditor  to  another, 
Assignment  in  general. 
How  far  the  interest  of  the  assignee  will  be  protected  at  law,  &c., 
How  may  be  made,  effect  of,  &c.. 
Assignments  of  bonds  and  liabilities  of  assignors  on  their  as 

signments,        ..... 
Decisions  of  the  supreme,  circuit,  and  district  courts  of  the  U.  S., 
Assignment  of  choses  in  action, 
Effect  of  possession  by  an  assignor  of  assigned  property  after 

assignment,       .... 
What  is,  and  what  is  not,  assignable,     . 


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14 
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15 
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19 

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24 

25 

27 

27 

28 
29 
30 
31 

31 


33 
39 
39 
42 
42 
49 
50 
50 

51 
52 
53 
54 
55 
57 

61 
62 
62 

63 

64 


-■*< 


CONTENTS. 

Page 

General  principles,          ......  64 

Decisions  in  1840  and  1841  in  MassachusettB,  Pennsylvania, 
Delaware,  New  Hampshire,    Arkansas,  Connecticut, 

and  North  Carolina,     .             ....  66 

Foreio^n  law,        ....             ...  69 

History  and  origin  of  asBignraent,           ....  72 

ATTACHMENT, 73 

What  constitutes  a  valid  attachment,    ....  74 

What  property  may  be  attached,            ....  74 

What  property  is  exempt  from  attachment,        ...  75 
How  long-  an  attachment  remains  in  force,  and  what  will,  or 

what  will  not  dissolve  or  defeat  it,           .            .            .  76 

When  an  attachment  will  or  will  not  lie,            ...  77 

Proceedings  in  attachment,         .....  78 

Effect  of  an   attachmeirt   as  to  rights  of  the  officer,  creditor, 

debtor,  &,c.,       ......  79 

ATTACHMENT  AGAINST  ABSENT  AND  ABSCOND- 
ING DEBTORS  IN  DIFFERENT  STATES,     .  81 

New  York, 81 

Against  what  property  may  attachment  issue,                 .            .  83 

Who  may  attach,  and  when,       .....  83 

Against  whom  an  attachment  lies,  what  property,  &c.,              .  83 

Trustees  arc  appointed,  &c.,       .....  88 

What  creditors  may  come  in,  and  when,            ...  84 
Attachments  against  abscondmg  and  absent  debtors  in  Penn- 
sylvania,           ......  84 

Domestic,            .......  84 

"  Who  are  liable  to  a  foreign  attachment,  and  when  a  domestic 

attachment  nmst  issue,            ....  85 

Foreign  attachment ;  what  property  is  liable  to  foreign  attach- 
ment, and  when  an  assignment  will  defeat  it,             .  85 
For  what  demands  and  in  what  courts  a  foreign  attachment  lies,  86 
Garnishee's  rights  and  liabilities,           ....  86 

Pleadings,  practice,  and  effect  of  judgment  in  foreign  attachment,  86 
Attachments  against  absconding  and   absent  debtors  in  South 

Carolina,  Domestic,    .....  87 

Foreign,             .......  88 

Attachments  against  absent  and  absconding  debtors  in  N.  C,  89 

Attachments  against  absent  and  absconding  debtors  in  Ken.,  9'2 

Attachments  in  Virginia,            .....  93 

Attachments  against  absent  and  absconding  debtors  in  Conn.,  93 

Attachments  against  absconding  and  absent  debtors  in  Tenn.,  94 

Attachments  against  absconding  and  absent  debtors  in  Maryland,  95 

Attachments  against  absconding  and  absent  debtors  in  N.  J.,  96 
Decisions  in  1840  and  18^11  in  the  states  of  Tennessee,  Illinois, 

Vermont,  New  York,  Louisiana,  Ohio,  and  Maine,  97 

ATTORNEY, 98 

Attorney  general  of  the  United  States,              ...  98 

Of  district  attornev-s     ......  99 

Admission  of  attorneys  and  counsellors  to  practice  in  the  su- 
preme courts  of  the  United  States,                  .            .  100 
Privilege  and  authority  of  attorney,  rigiits  of  client,  &.C.,          .  lOI 
Duties  and  liabilities  of  attorney,          ....  107 

Of  privileged  communications,  &c.,  to  an  attorney  and  when 

he  may  be  a  witness  in  his  client's  cause,  &c.,  109 

Attorney's  lien,             .            .            .            .            ...  HI 

Attorney  cannot  be  bail,             .....  112 


APPENDIX 


TO 


KINNE'S   LAW   COMPENDIUM 

No.  I. 


ABATEMENT. 


1.  What  is  an  abatement  ? 

Abatement  in  its  present  and  most  general  signification,  relates  to 
writs  or  plaints,  and  means,  the  quashing  or  destroying  the  plaintiff's  writ 
or  plaint.  A  plea  in  abatement,  is  a  plea  put  in  by  the  defendant,  in  which 
he  shows  cause  to  the  court  why  he  should  not  be  impleaded  or  sued,  or 
if  impleaded,  not  in  the  manner  and  form  he  then  is,  therefore  praying 
that  the  writ  or  plaint  may  abate  ;  that  is,  that  the  suit  of  the  plaintiff  may 
for  that  time  cease.— 1  Inst.,  134.  h.  277.'  F.  N,  B.,  115.  Gilb.  H.  C. 
D.,  186.  Terms  de  Ley,  1  Chitty  on  Pleading,  vol.  1,  434.  Or  thus, 
abatement  is  a  term  having  several  meanings. 

The  most  general  is  its  application  to  a  plea  which  goes  to  show  that 
the  plaintiff  cannot  recover  in  the  form  of  action,  its  appropriate  use  is  : 

1.  When  the  courts  have  no  jurisdiction. 

2.  When  the  plaintiff  has  no  right  to  prosecute  ;  as  in  actions  for 
wrongs,  when  too  few  or  too  many  have  joined  in  the  action. 

3.  When  real  parties  to  a  contract,  are  not  all  joined  as  defendants. 
In  the  last  case  the  plea  must  state  who  are  the  real  parties. 

Two  very  inconvenient  results  arise  from  omitting  to  plead  this  plea 
in  the  case  last  mentioned,  viz. : 

1.  The  defendants  proceeded  against  must  answer  to  the  plaintiff  for 
tha  whole  amount  recovered. 

2.  They  cannot  recover  of  their  co-contractors  the  proportion  they 
should  pay  of  the  amount,  because  it  was  in  their  power  to  have  made 
them  co-defendants. 


PLEAS  TO  THE  JURISDICTION. 

1.  Is  it  sufficient  to  state  in  a  plea  in  abatement  to  a  bill  for  forclosure 
for  want  of  jurisdiction  that  "  value  of  the  matter  or  thing  in  demand," 
exceeds  or  falls  short  of  the  requisite  sum  ? 


10  ABATEMENT. 

It  is  not,  but  the  value  of  the  mortgaged  premises  must  be  specifi- 
cally alleged. — Peters  v.  Goodrich,  3  Conn.,  1  16.  Exceptions  to  the  ju- 
risdiction of  the  circuit  court  of  the  United  States,  by  denial,  that  one  of 
the  parties  to  a  bill  in  equity  is  a  citizen,  &;c.,  must  be  taken  by  plea  ir» 
abatement,  and  not  by  a  general  answer. —  Wood  v.  Manne,  1  Sumner ^ 
578. 

Where  a  defendant  appears  in  a  court  of  general  jurisdiction  in  a 
neighboring  state,  (one  of  the  United  States,)  the  judgment  of  the  court 
is  conclusive  against  him,  and  shall  have  the  same  effect  as  a  judgment 
in  a  court  of  general  jurisdiction  in  this  state. —  Wheeler  v.  Raymond,  8 
Cow.,  311. 

A  plea  to  the  jurisdiction  of  a  court,  in  a  transitory  action,  is  proper 
only  when  some  court  of  the  nation  has  jurisdiction  of  the  cause  of  ac- 
tion, and  not  the  court  in  which  the  suit  is  brought.  Such  plea  must  be 
made  by  the  defendant  in  propria  persona,  and  on  oath. — Rea  v.  Haydon, 
3  Mass.,  24.  Lawrence  \.  Smith,  5  Ibid,  362.  Jones  v.  Winchester,  6  N. 
Hamp.,  497.  Teasdale  v.  The  Rambler,  Bee,  9.  After  pleading  in  bar, 
it  is  too  late  to  object  to  the  jurisdiction. — Smith  v.  Elder,  3  /.  R.,  105. 

The  proceedings  of  any  tribunal,  not  having  jurisdiction  of  the  sub- 
ject matter  which  it  professes  to  decide,  are  void. — Den.  v.  Harnden^ 
Paine,  55.  Wickes  v.  Caulke,  5  Har.  <^  J.,  42.  Griffith  v.  Frazer,  8 
Cranch,  9. 

Courts  of  inferior  jurisdiction,  must  not  only  act  within  the  scope  of 
their  jurisdiction,  but  it  must  appear  on  the  face  of  their  proceedings  that 
they  so  acted,  or  their  proceedings  are  coram  non  judice,  and  void. — Hunt 
V.  Hapgood,  4  Mass.,  122.  Clapp  v.  Beardsley,  1  Aik.,  168.  Martin  v. 
McKtnney,  Pr.  Dec,  380.  Hall  v.  Howd,  10  Conn.,  514.  Kendrick  v. 
Cleveland,  2  Verm.,  329.  Powers  v.  People,  4  Johns.,  292.  Hamilton  v. 
Burum,  3  Yerg.,  355.  Latham  v.  Yergerlon,  9  Cow.,  227.  Stockett  v. 
Nicholson,  Walker,  75.  Wooster  v.  Parsons,  Kirhy,  27.  Wilkes  v. 
Caulk,  5  Har.  cj-  /.,  36.  McKinzic  v.  Rarnsey,  1  Bailey,  459.  Harvey 
v.  Huggins,  2  Bailey,  267.  See  2  Overt.,  215.  Den  v.  Turner,  9  Wheat., 
541.  Kemp  v.  Kennedy,  5  Cranch,  172.  Peter's  C.  C,  36.  Albee  v. 
Ward,   8   Mass.,  86.      Walbridge  v.  Hall,  3  Vern.,  114.      Smith  v.  Rice, 

11  Mass.,  bl3.  Willia7ns  V.  Blount,  2  Mass.,  213.  Turner  v.  Bank  of 
America,  4  Dull.,  11.  But  this  principle  may,  however,  be  altered  or 
(qualified  by  the  legislature.  — Peter's  C.  C,  36. 

Consent  of  parties  cannot  confer  jurisdiction  in  a  matter  which  is 
excluded  by  law. — Browne  v.  McKee,  1  J.  J.  Marshall,  476.  Lindsey  v. 
McClayland,  1  Bibb.,  263.  Ormsby  v.  J.,ynch,  6  Lit.,  303.  See  also,  5 
Monroe,  388.  Cooke,  27.  Kirby,  111.  3  Randall,  394.  Wright,  21, 
170.  Minor,  05.  4  Dev.,  264.  3  Caincs\  129.  .Ben^s  v.  Graves,  3 
McCord,  280.  /'o/cy  v.  People,  1  /Jrccye,  32.  McHenry  v.  Wallen,  2 
ycr^.,  441.  Simp.fonv.  McMillion,  1  A^.  Jp  3/.,  192.  Wells  v.  Rc7jnolds, 
1  CoMAf.  Reyj.,  478.  7ianA.v  v.  Fowler,  3  Lc«.,  332.  McCall  v.  Peachy, 
1  ("a//.,  .0.0.  But  where  a  parly  has  some  privilege  which  exempts  him 
from  juri.sdiciion,  he  may  if  he  choose  waive  the  privilege,  provided  the 
court  has  jurisdiction  of  the  subject  matter. —  Cleveland  v.  Welsh,  4  Mass. 
593.  HaTiison  v.  Rowan,  Peter's  C.  C.  489.  Overstreet  v.  Browne, 'i 
McCord,  79.     Campbell  v.   Cowden,  Wright,  484.     See  also,   Browne  v. 


ABATEMENT.  11 

Crow,  Hardin,  448.  S.  P.  Bogle  v.  Fitzhigh,  2  Wash.,  213.  HaU  v. 
Dana,  2  Atk.,  381.  Smith  v.  Mclver,  9  Wheat.,  532,  The  Robert  Fulton, 
Paine,  621.  Eaton  v.  Paterson,  3  Stew.  <Sf  Port.,  9.  Stearns  v.  Stearns, 
l6Mass.,n\.     Bemis  V.  Stearns,  16  Mass.,  203.      State  v.    Yarbrovgh, 

1  Hawks,  78.      Thompson  v.  PIill,  3  Yerger,  167. 

To  an  action  of  debt  on  a  judgment  obtained  against  the  defendant, 
"in  the  term  of  February,  1827,"  in  the  supreme  court,  "  then  holden  at 
the  capital  in  the  city  of  Albany,"  the  defendant  pleaded  in  abatement  to 
the  jurisdiction  of  this  court  that  "  the  cause  of  action  if  any,  ac- 
crued to  the  plaintiff,  in  the  county  of  Albany,"  &c.  upon  the  demurrer  to 
this  plea ;  held,  that  if  the  plea  were  correct  in  point  of  principle,  it  was 
nevertheless  insufficient,  because  it  did  not  show  that  the  record  of  the 
judgment  was  filed  in  Albany. — Kelly  v.  Mullany,  2  H.,  205. 

The  right  of  objection  to  the  jurisdiction  of  a  court  if  appointed  on 
the  record,  exists  through  every  stage  of  the  proceedings. — Humphrey  v. 
State,  Minor,  64.  Capson  v.  Van  Noorden,  2  Cranch,  126.  Ketland  r. 
The  Casius,  2  Ball.,  368.  Lawrence  v.  Smith,  5  Mass.,  362.  Green  v. 
Magum,  3  Murph.,   39.     Sweet  v.  Dow,  1  Root,  409.     Glidden  v*  Elkins, 

2  Tyler,  218.  State  v.  Turner,  Wright,  21.  But  an  agreement  to  arbi- 
trate does  not  divest  courts  of  their  jurisdiction. — Randall  v.  Chesapeake, 
^c.  Canal  Company,  1  Harring,  234.  Gray  v.  Wilson,  4  Watts,  39. 
Allegre  v.  Maryland  Ins.  Co.,  6  Har.  <Sf  J.,  408.  Nothing  but  irresistible 
implication  or  express  negative  words  of  a  statute  can  take  away  the  ju- 
risdiction of  superior  courts. — Commonwealth  v.  White,  8  Pick.,  453. 
Commonwealk  v.  McCluskey,  2  Rawle,  369.  Murfree  v.  Leeper,  1  Overt., 
1.  Barginhosen  v.  Martin,  3  Yeates,  479.  Overseers,  ^c.  v.  Smith,  2  S. 
4"  R.,  363. 


PLEA  RELATIVE  TO  THE  PERSON  OF  THE  PLAINTIFF. 

1.  May  not  the  defendant  plead  to  the  person  of  the  plaintiff  that  there 
never  was  any  such  person  in  rerum  natura  ? 

}iems.y.—Bro.  Brief,  25.  19  Johns.,  308.  Com.  Dig.  Abatement,  E. 
16.  And  if  one  of  several  plaintiffs  be  a  fictitious  person  it  abates  the 
writ.  — Coot.  Dig.  Abatement,  £.16.  1  Chitt.  PI,  435.  Arch.  Civ.  PI, 
304  —  2.  Doe  V.  Penfield,  19  J.  R.,  308.  So,  the  defendant  may  plead 
that  the  plaintiff  is  2.  feme  covert;  Co.  Litt.,  132,  b.;  or  that  she  is  his 
own  wife.  —  1  Browne  Ent.  63,  and  see  3  T.  Rep.,  631.  6  T.  Rep.,  265. 
Com.  Dig.  Abatement,  E.G.  1  Chit.  PL,  437.  Arch.  Civ.  P/.,  302. 
Perry  v.  Boillen,  10  S.  R.,  108.  Lyman  v.  Albee,  7  Vern.,  508.  Such 
plea  must  be  verified  by  affidavits,  filed  at  the  time  of  pleading. —i2a^;j  v. 
Elliott,  2  Dall.,  184.  1  Yeates,  185.  Marriage  of  a  female  plaintiff, 
after  suit  commenced  may  be  pleaded  in  abatement  of  her  suit,  if  a  con- 
tinuance has  not  intervened  between  the  plea  and  the  marriage.  —  Bates  v. 
Stevens,  4  Verm.,  545.  Haines  v.  Corliss,  4  Mass.,  659.  Wilson  v. 
Hamilton,  4  S.  <^  R.,  238.  Guphill  v.  Isabell,  1  Baily,  369.  See  also, 
respecting  abatement  on  account  of  marriage. —  Campbell  v.  Kuthare, 
Brayt.,  21.     Chirac  v.  Reiwicker,  11  Wheat.,  303.     Ornard  v.  Proprietors 


12  ABATEMENT. 

of  Kennebec  Purchase,  10  Mass.,  179.  Ncwal  v.  Marcey,  17  Mass.,  341. 
/S'tran  v.  Wilkinson,  14  iWa^s.  295.  McCoul  v.  ie  Kemp's  AdmWs.,  2 
VWieaion,  111. 

ALIEN. 

Alien  enemy  may  be  pleaded  either  in  abatement  or  in  bar. — Bell  v. 
Chapman,  10  /.  R.,  183.  1  Bac.  Ahr.,  ^.  6  Bmneij,  241.  9  Mass., 
363.  Id.,  377.  11  Mass.,  119.  12  Mass.,  8.  3  3f .  ^  -S".,  533.  2 
Johns.  Ch.  R.,  508.  15  £«.?<.,  260.  Com.  Dig.  Abatement,  E.  4.  Id. 
Alien,  c.  5.  I  S.  <Sf  R.,  310.  1  Ch.  PL,  435.  ^Irc/t.  Ciu.  PL,  3.  301. 
But  alien  enemy  to  a  real  action  may  be  pleaded  in  bar  or  in  abatement. 
— Hutchinson  v.  Brock,  11  Mass.,  119.  Levine  v,  Taylor,  12  Mass.,  8. 
Sewall  V.  Lee,  9  ifcr.Ji'.,  363.  Martin  v.  WoocZi',  75.,  377.  Ainslee  v. 
Martin,  lb.,  454.  Jackson  v.  Decker,  11  /.  iJ.,  418.  But  abatement  in 
such  cases  may  be  considered  most  proper,  as  the  judgment  would  not, 
in  either  case,  be  a  bar  to  a  new  action  on  the  return  of  peace.  — 5eZ/  v. 
Chapman,  10  /.  R.,  183.  In  New  York,  alien  enemy,  it  seems  may  be 
pleaded  in  bar,  or  in  abatement  of  personal  actions.— J5e//  v.  Chapman, 
10  /.  R.,  183.  Jackson  v.  Decker,  11  lb.,  418.  But  however  pleaded, 
the  plaintiff's  right  of  action  is  only  suspended  during  the  war. — Jackson 
V.  Decker,  11  lb.,  418.  Hutchinson  \.  Brock,  11  Mass-,  119.  Levine  \. 
Taylor,  12  Mass.,  8.  See  also,  Russell  v.  Skipvnth,  6  Bmn.,  241.  1 
Rand.,  272.  Clarke  v.  Morey,  10  Joh?is.,  60.  State  v.  Stanhope,  Brayt., 
20.  Ainslee  v.  Martin,  9  Mass.,  454.  Coxe  v.  Gulicke,  5  Hoist.,  328. 
Jackson  v.  McConncll,  11  Johns.,  424. 


PLEA  TO  THE  JURISDICTION  OF  THE  PERSON  OF 
PLAINTIFF.— DEATH  OF  PLAINTIFF. 

Death  of  the  plaintiff  before  the  service  of  the  original  writ,  may  be 
pleaded  in  abatement.  —  1  Arch.  Civ.  PL,  304,  5.  Com.  Dig.  Abatement, 
E.  17.  Death  of  plaintiff  pending  the  writ  might  have  been  pleaded  since 
the  last  continuance.- Com.  Dig.  Abatement,  H.  32.  4  Hen.  df  Mumf., 
410.  3  Mass.  296.  Cam.  6f  Nor.,  72.  But  in  some  states,  as  in  Penn- 
sylvania, the  death  of  the  plaintiff  does  not  abate  the  writ,  the  executor 
or  administrator  is  substituted.  The  death  of  one  of  the  demandenls  in 
a  writ  of  right,  or  other  real  action,  before  trial  abates  the  writ  as  to  all. 

—  Cuttsv.  Ha.skins,  11  Mass.,  56.  10  Mass.,  179.  Carter  v.  Carr, 
Gilmer,  145.  An  action  by  a  lather  for  seduction  of  his  daughter,  abates 
by  his  death.—  l/cCVi/rc  v.  Miller,  4  Hawks,  133.  A  bill  by  husband  and 
wife  to  recover  a  demand  in  her  right,  abates  by  her  death.- ^rc/ter  v. 
Collry.  4  //.  c^  M.,  410.  Ryder  v.  Robinson,  2  Greenlf.,  127.  Action 
by  trustees  of  an  insolvent  debtor,  abates  by  death  of  one  of  the  plaintiffs. 

—  Chapman  v.  Tho?nas,  I  Root,  67.  A  petition  to  foreclose  an  equity  of 
redeni[)lion  abates  by  petitioner's  death.— Gray  v.  Webb,  2  Root,  257. 
See  also,  Wright,  518.  So,  a  liill  in  equity,  by  a  mortgagor  to  redeem, 
abates  by  his  death.  —  ,S'>7ii^A  v.  Manning,  9  Mass.,  422. 


ABATEMENT.  ,  13 

Where  there  is  a  verdict  for  a  defendant  in  an  action  for  a  false  re- 
turn, and  the  plaintiff  applies  for  a  new  trial,  which  is  granted,  but  pend- 
ing the  motion,  the  plaintiff  dies,  the  suit  abates  and  cannot  be  revived  by 
scire  facias  by  his  executors.  —  Benjamin'' s  Ex'rs.  v.  Smith,  17  Wend.,  208. 

A  petition  for  a  review  abates  by  petitioner's  death. —  Woodioardy. 
Scollfield,  4  Mass.,  375.  So,  of  a  motion  for  a  new  trial- — Turner  v. 
Booker,  2  Dana,  335. 

Action  of  debt  for  a  statute  penalty  abates  by  a  single  plaintiff's 
death.  — Little  v.  Connant,  2  Pick.,  527.  Estes  v.  Lenox,  C.  ^  N.,  72. 
Reed  v.  Cist,  7  S.  <^  R.,  184.  But  not  by  the  death  of  one  of  the  two 
plaintiffs.  —  WHo-A;  v.  Eldred,  2  Chip.,  37. 

Action  of  assault  and  battery  abates  by  plaintiff's  death,  after  an  ap- 
peal by  the  defendant  from  an  award  in  favor  of  the  plaintiff.— iWiZ/er  v. 
Unbehower,  10  S.  <Sj-  R.,  31. 

Writ  of  error,  in  personal  actions,  abates  by  death  of  plaintiff,  before 
errors  assigned ;  otherwise  after  assignment  of  errors. —  Greene  v.  Wat- 
kins,  6  Wheat.,  260.  Marshall  v.  Peck.  1  Dana,  609.  In  real  actions, 
(by  rule  of  Supreme  Court,  U.  S.,)  such  writ  does  not  abate  by  death  of 
either  party.  —  6  Wheat.,  260.     Marshall  v.  Peck,  1  Dana,  609. 

But  the  death  of  a  lessor,  in  ejectment,  does  not  abate  the  suit. — 
Frier  v.  Jackson,  Ex  dem  Van  Allen,  8  J.  R.,  495.  Nor  of  one  of  several 
lessors.  —  Bontay  v.  Clay,  5  Litt.,  129.  Kinne  v.  Beverley,  1  H.  <^  M., 
531.  Purvis  v.  Hill,  2  lb.,  614.  Frier  v.  Jackson,  8  Johns.,  495.  How- 
ard V.  Moale,  2  Har.  cf  J.,  249.  Nor  does  an  appeal  from  a  judgment,  in 
ejectment,  abate  by  lessor's  death,  though  he  claimed  the  land  for  life  only. 
—Medley  V.  Medley,  3  Mumford,  191.  Tomkies  v.  Waters,  6  Call,  44. 
Though  a  writ  of  right  abates  by  a  parties  death,  yet  an  appeal  or  writ  of 
error,  to  reverse  a  judgment,  in  such  action,  may  be  revived  by  the  rep- 
resentatives of  a  party  to  such  appeal,  &c.,  who  dies.  —  Saunders  v.  Bus- 
kirk,  1  Dana,  411. 

Death  of  one  of  several  plaintiff's,  in  an  action  of  trespass,  qu  cl  fr. 
does  not  abate  the  suit.  —  JIaven  v.  Browne,  7  Greene,  421.  Boynton  v. 
Rees,  9  Pick.,  528.  Wilson  v.  Slaughter,  3  /.  /.  Marsh.,  595.  Nor 
does  death  of  one  of  the  plaintiffs  in  a  qui  tarn  action.—  Wright  v.  Eldred, 
2  Chip.,  37. 

A  suit  does  not  abate  by  the  death  of  either  party,  after  the  service 
of  the  writ,  and  before  the  time  of  entering  the  action,  provided  the  cause 
of  action  %\xx\\ves.  —  Clendenen  v.  Allen,  4  N.  Hajnp.,  385.  The  death  of 
the  plaintiff  intermediate  the  verdict  and  judgment,  does  not  abate  the  suit, 
or  in  any  way  effect  its  course. — Springstead  v.  Jayne,  4  Cow.,  423. 

In  New  Jersey,  death  of  an  executor  or  administrator,  does  not  abate 
a  suit,  commenced  by  him.  It  may  be  prosecuted  by  the  administrator, 
de  bonis  non. —  Crane  v.  Ailing,  2  Greenlf,  593.  Contra  in  Ohio.—  Gorm- 
ley  V.  Skinner,  Wright,  680. 

In  a  court  of  admiralty,  death  of  a  party  does  not  abate  the  suit,  nor 
vitiate  the  decree. — Penhallow  v.  Doane^s  Admrs.,  3  Dallas,  54. 

Death  of  either  party,  after  verdict,  and  before  judgment,  does  not 
abate  a  suit.— Garner  v.  Conn,  2  Dana,  231. 


1*  ABATEMENT. 


INFANCY  OF  PLAINTIFF. 

1.  Must  not  infancy  of  plaintiff  be  pleaded  in  abatement  ? 

It  must ;  and  is  not  a  ground  of  non-suit  at  the  trial.  —  Schermerhorn 
\.  Jenkins,  7  /.  R.,  373.  Ex  parte  Scott,  1  Cow.,  33.  See  also,  1  Chit. 
PL,  436.  Arch.  Civ.  Pi,  301.  Arch.  P.  R.  B.  R.,  143.  2  Saund.,  213, 
a,  n.  5  ;   1   Wcrilw.,  58,  62 — 4. 

LUNACY. 

A  suit  brought  by  a  lunatic,  under  guardianship,  shall  abate. — 
Brayt.,  18. 

DEATH  OF  DEFENDANT. 

1 .  Does  not  the  death  of  the  defendant  abate  the  writ  at  common  law  ? 

It  does  ;  and  in  some  cases  still  abates  the  action.  — »See  Com.  Dig. 
Abatement,  H.  34.      1  Hayw.,  500.    2  Binn.,  1.      1  Gilm.,  145—4. 

An  action  against  husband  and  wife  on  a  contract  of  the  wife  while 
sole,  abates  as  to  the  husband  by  his  death.*— iVufz  v.  Rutter,  1  Watts, 
229. 

Death  of  defendant  abates  an  action  of  replevin. — Mellen  v.  Baldwin, 
4  Mass.,  480.  So  it  does  in  an  action  of  trover.  —  Barnard  v.  Harrington, 
3  Mass.,  288.  And  in  an  action  of  trespass,  if  he  die  before  verdict. 
—  Harris  v.  Crenshaw,  3  Rand.,  14. 

But  if  defendant  die  after  verdict  and  before  judgment,  the  court  will 
enter  judgment  as  of  the  term  when  the  verdict  was  returned.  —  Perry  v. 
Wtlson,  7  Mass.,  395.  A  writ  of  attachment  abates  by  defendant's  death 
before  judgment. —  Crocker  v.  Radclijfc,!  Const.  Rep.,  83.  Death  of  the 
tenant  in  a  real  action  abates  the  suit.  —  Mocker  v.  Thomas,  7  Wheat., 
530.  So,  in  an  action  of  trespass  for  seizing  plaintiff's  vessel  on  the  high 
»ea.s.  — Nicholson  v.  Elton,  \3  S.  (Sf  R.,  415.  And  in  an  action  of  debt, 
whether  qvi  tarn  or  otherwise,  for  a  penalty. — Benson  v.  Egerton,  Brayt., 
21.  Smith  V.  Walker,  2  Car.  Law  Repos.,  245.  So  for  breach  of  pro- 
mise of  marriage  when  no  o/jenaMamage  is  alleged.  —  Stehbms  v.  Palmer, 
1  Pick.,  71.  Lcttimore  v.  Simmons,  13  S.  cj-  R,  183.  The'  civil  death 
of  the  defendant  abates  the  suit — as  where  he  is  sentenced  for  life. — 
(iraham  v.  Adams,  2  J.  C,  408.  Death  of  an  appellee,  defendant  in 
ejectment  abates  the  suit,  and  it  cannot  be  revived  by  scire  facias.  —  Tom- 
kics  V.  Walters,  6  Call.,  44.  See  also  Moss  v.  Scott,  2  Dana.,  273.  If 
one  of  two  defendants  die,  before  the  writ  is  served,  though  after  its  date, 
the  actions  abates  as  to  both. —  Clarke  v.  Helmes,  1  Root,  486.  Where  a 
case  is  referred  to  arbitrators  by  consent,  and  before  the  award  is  con- 
firmed, the  defendant  dies,  tlie  case  abates. — Farmer  v.  Frey,  4  McCord, 
IGO.      3  Halst.,  316. 

By  the  common  law,  death  of  parties,  before  judgment,  in  real  and 
personal  actions,  abates  the  suit,  and  it  is  only  by  statutory  provisions  that 


ABATEMENT.  15" 

the  suit  where  the  cause  of  action  survives  can  be  prosecuted  by  or 
against  the  representatives  of  the  deceased.  —  Green  v.  Watkms,  G  Wheat., 
260.  The  statute  17  Car.,  2,  c.  8,  enacts  that  it  shall  not  be  matter  of 
error,  if  judgment  be  entered  within  two  terms  after  the  verdict.  The 
judgment  upon  this  statute  is  entered  by  or  against  the  party,  as  though 
he  were  alive.  But  there  must  be  a  scire  facias  against  the  administra- 
tor to  revive  it  before  any  execution  can  issue,  and  such  scire  facias  per- 
suing the  form  of  the  judgment,  should  be  general,  as  on  a  common  judg- 
ment recovered  by  or  against  the  original  party  himself.  — i/o^cA  v.  Eustis, 
1  Gallis,  160.  Chapman  v.  Thomas,  1  Root,  67.  Gray  v.  Webb,  2  Root, 
257.  Green  v.  Watkins,  2  Wheaton,  260.  If  the  defendant  be  a  mar- 
ried woman,  she  may  in  general  plead  her  coverture  in  abatement.  — 8  T. 
R.,  545.  Com.  Dig.  Abatement,  F.  2.  The  exceptions  to  this  rule  arise 
when  the  coverture  is  suspended. —  Com.  Dig.  Abatement,  F.  2,  ^  3.  Co. 
Litt.,  132,  B.     2  Bl.  R.,  1197.     Co.Bl,  43.-3. 

But  a  writ  of  error  in  personal  actions,  does  not  abate,  by  death  of 
defendant  in  error,  whether  it  happen  before  or  after  errors  assigned. — 
Hatchcraft  v.  Gentry,  2  /.  /.  Marsh.,  499.  Marshall  v.  Peck,  1  Dana, 
609.  Green  v.  Watkins,  6  Wheaton,  260.  Spark  v.  Van  Gundy,  3 
Ham.,  305. 

Death  of  one  of  several  defendants  in  a  writ  of  right  does  not  abate 
the  suit.— Holmes  v.  Holmes,  2  Pick.,  23.  Nor  does  death  of  bail,  pen- 
ding a  scire  facias,  against  them,  their  representatives  may  defend  or  sur- 
render the  principal  as  the  bail  might.  — Wheeler  v.  Wheeler,  7  Mass.,  169. 
Nor  does  death  of  one  of  several  defendants,  sued  on  a  joint  contract,  it 
proceeds  against  the  others.  —  Harrison  v.  King,  Minor,  364.  Bundy  v. 
Williams,  1  Root,  543. 


NON-JOINDER  OF  PLAINTIFF. 

1.  Is  it  not  a  good  plea  in  abatement  of  a  writ  of  error,  brought  to  re- 
verse a  decree  on  a  bill  in  chancery,  that  one  only  of  several  original  res- 
pondents sues  the  writ  ? 

It  is  ;  all  should  join. — Phelps  ^r.  Ellsworth,  3  Day,  144.  So,  if  one 
of  several  joint  executors,  who  have  proved  the  will,  or  even  if  they  have 
not  proved  the  will.  — 1  Chit.  PL,  12,  13.  One  of  several  joint  adminis- 
trators. —75tVZ,  1 3.  The  defendant  may  plead  the  non-joinder  in  abatement. 
—Arch.  Civ.  PI.  304  ;  see  Com.  Dig.  Abatement,  E.  9,  E.  12,  E.  13,  E. 
14 — 9.  But  plea  of  non-joinder  of  co-executors,  as  plaintiffs,  is  bad,  if 
they  do  not  show  where  they  reside,  and  that  they  were  executors  at  the 
commencement  of  the  suit.  — BeacA  v.  Baldwin,  9  Conn.  476. 

In  all  cases  of  tort,  whether  to  real  or  personal  property,  one  part 
owner  of  the  properly  injured,  may  maintain  his  action  for  the  injury  done 
him,  unless  the  defendant  takes  advantage  of  the  omission,  by  plea  in  abate- 
ment. No  advantage  of  the  non-joinder  can  be  taken  in  any  other  way, 
except  in  mitigation  of  damages.  — 5eZ/  v.  Layman,  1  Monr.  40.  Rich  v, 
Penfield,  1  Wend.  380.  Wheelwright  v.  Depcystcr,  1  Johns.  471.  Broth- 
erton   v.  Hodges,  6  Ibid,  108.     Bradtsh  v.  Schenck,  8  Ibid,  151.      Hall  v. 


1  6  ABATEMENT. 

Adams,  1  Aik.,  166.  In  replevin,  however,  if  from  the  plaintiffs  own 
showino:,  in  the  writ,  he  claims  only  an  undivided  part  of  the  chattels  re- 
plevied, the  court  will,  on  motion,  or  ex  officio,  abate  the  writ,  or  arrest  the 
judgment. — Hart  v.  Fitzgerald,  2  Mass.,  509. 

The  non-joinder  of  a  secret  partner,  pleaded  in  abatement,  verified  by 
proof,  is  no  bar  to  a  recovery  in  an  action  by  endorsees  of  a  promissory 
note,  unless  knowledge  of  a  partnership,  at  the  time  of  the  transfer  of  the 
note,  be  brought  home  to  the  plaintiffs. — New  York  Dry  Dock  Company  v. 
Treadwell,  19  Wend.,  525. 

In  an  action  ex  delicto,  the  non-joinder  of  a  party  plaintiff,  can  be  taken 
advantage  of  only  by  plea  in  abatement,  or  by  way  of  apportionment  of 
damages  on  the  trial. —  Gilbert  v.  Dickenson,  7  Wendell,  449.  Wheel- 
wright V.  Depeyster,  1  /.  R.,  471.  A  plea,  that  other  persons  ought  to  have 
joined  as  plaintiffs  in  the  writ,  must  set  forth  particularly  who  those  per- 
sons arc,  and  describe  them,  so  as  to  enable  the  plaintiffs  to  make  a  better 
writ.  It  is  not  sufficient  to  allege  that  A.  and  his  assigns,  and  B.  and  his 
heirs,  ought  to  have  joined. —  Wadsworth  v.  Woodford,  1  Day,  28. 


NON-JOINDER  OF  DEFENDANT. 

1.  May  not,  in  actions  of  contract,  non-joinder  be  pleaded  in  abatement  ? 

It  may  ;  but  can  be  excepted  to  in  no  other  way,  unless  such  non- 
joinder appears  on  the  record.  —  Sto7icy  v.  McNeil,  Harper,  173.  Horton 
V.  Cook,  2  Watts,  40.  Le  Page  v.  McCrea,  1  Wend.,  164.  Williams  v. 
Allen,  7  Cow.,  316.  Gay  v.  Cary,  9  Cow.,  44.  Jordan  v.  Wilkins,  3 
Wash.  C.  C,  110.  Moore  v.  Russel,  2  Bibb.,  443.  2  /.  /.  Marsh,  38. 
Wtlson  V.  Wallace,  8  S.  <^  R.,  55.  Geddis  v.  Hatch,  10  lb.,  3.1.  Win- 
slow  V.  Merril,  2  Fairf.,  127.  Browne  v.  Warram,  3  Har.  cf  John.,  572. 
Powers  V.  Spear,  3  A^  Hamp.,  35.  Robinson  v.  Robinson,  1  Fairf.,  240. 
Zeil  V.  Campbell's  Executors,  2  Johns.  Cases,  382.  Robertson  v.  Smith, 
18  Johns.,  459.  Williams  v.  Allen,  7  Cow.,  316.  Cumming  v.  Eden,  1 
lb.,  70.  Gay  v.  Carey,  9  lb.,  44.  Coffee  v.  Eastland,  Cooke,  159.  Barry 
V.  Foyles,  1  Pet.,  317.  MacKall  v.  Roberts,  3  Monr.,  130.  Barstow  v. 
Fosset,  1 1  Mass.,  250.  Mc Arthur  v.  Ladd,  5  //am.  517.  Morgan  v.  Crim, 
1  il/oTir.,  129.  McCallv.  Price,  1  McCord,  82.  Conlyv.  Good,  1  /Jree^e, 
96.  Bradley  v.  Camp,  Kirby,  106.  Browne  v.  Belches,  1  VFa^A.,  9.  ^Bar- 
re/  V.  IFa^.yon,  /6.,  372.  Even  on  joint  and  several  bonds,  &c.,  executed 
by  three,  and  whore  two  are  sued,  and  where  the  promise  was  made  by 
the  defendant,  and  one  of  the  plaintiffs  jointly.  But  this  rule  is  confined 
to  those  species  of  actions  in  which  the  plaintiff  gives  notice  to  the  de- 
fendant of  the  nature  of  his  demand,  as  in  actions  on  bonds,  or  special 
actions  on  the  case,  and  docs  not  extend  to  actions  of  general  indebitatus  ^ 
assumpsit,  unless,  in  such  suits,  the  plaintiff,  before  plea,  furnishes  the 
defendant  with  a  copy  of  the  account,  which  he  means  to  offer  at  the  trial ;; 
and  does  not  apply  to  actions  of  debt,  qui  tarn,  for  a  penalty ;  for,  as  the ! 
tort  is  several,  as  well  as  joint,  the  debt  follows  the  nature  of  the  tort. — 
Allen  V.  Luckett,  3  /.  ./.  Marsh.,  165.  Minor  v.  Mechanic.'!'  Bank  of  AI-, 
exandria,  1  Pet.  46.     Robinson  v.  Fisher,  3  Caines,  99.     Palmer  v.  Crosby, 


ABATEMENT.  17 

1  Black/.,  139.  Jordon  v.  Wilkins,  3  Wash.  C.  C,  110.  Bur nh am  v. 
Webster,  5  Mass.  270.     Bontclle  v.  Nourse,  4  lb.,  431.     Frost  v.  Rouse, 

2  Greenl.,  130.  Powers  v.  Spear,  3  iV.  Harnp.,  35.  When  husband  and 
wife  should  bo  sued  jointly,  and  one  is  sued  alone,  the  non-joinder  may  be 
pleaded  in  abatement.— ^rc/i.  Civ.  PL,  309.  The  non-joinder  of  all  the 
executors  who  have  proved  the  will,  and  the  non-joinder  of  all  the  admin- 
istrators of  the  deceased,  may  be  pleaded  in  abatement.  —  Com.  Dig.,  Abate- 
ment, F.  12.  Or  one  of  them  may  take  the  entire  tenancy  on  himself,  and 
pray  judgment  of  the  writ.  — Id.,  F.,  13. 

In  an  action  against  one  secret  partner,  it  is  cause  of  abatement,  that 
other  secret  partners  are  not  joined.  — £/a  v.  Rand,  4  N.Hamp.,  307.  In 
a  suit  against  partners  for  a  debt  due  by  them  alone,  the  non-joinder  of  any 
member  of  the  firm  may  be  pleaded,  as  in  cases  of  other  joint  contractors^ 
—  Barry  V.  Foyles,  1  Pet.,  311.  Robertson  v.  Smith,  18  Johns.  459.  A 
partner  who  bought  and  applied  goods  for  the  use  of  the  firm,  may  plead  in 
abatement,  if  sued  alone,  the  non-joinders  of  the  other  partners,  though  the 
plaintiff  was  ignorant  of  the  partnership.  —  Alexander  v.  McGinn,  3  Watts^ 
220.  But  where  one  of  two  partners  resident  abroad,  is  sued  here,  he  cannot 
plead  in  abatement,  that  his  co-partner  is  not  sued  with  him.  —  Guionv, 
McCullagh,  N.  Carol.  Cases,  78.  Where  a  joint  and  several  note  is  given 
by  a  firm,  and  by  another  person,  a  suit  may  be  maintained  against  the  firm 
only ;  they  being  considered,  for  this  purpose,  as  but  one  person,  and  the 
non-joinder  of  the  other,  cannot  be  pleaded  in  abatement.  —  Van  Tine  v. 
Crane,  1   Wend.,  524. 

A  defendant,  to  prevent  the  plaintiff's  recovering  a  demand  against 
him  and  another,  under  a  declaration  against  him  alone,  must  in  all  cases, 
plead  the  non-joinder  in  abatement. — .Williams  v.  Allen,  7  Cowen,  316. 
Where  one  of  several  joint  debtors  is  sued  alone,  he  must  plead  the  non- 
joinder in  abatement,  and  cannot  take  advantage  of  it  on  the  trial  ;  and  if 
he  plead  in  bar,  the  bills  of  particulars  may  run  against  him  alone,  without 
mentioning  his  co-debtors. —  Gay  v.  Cary,  9  Cow.,  44. 

A  plea  in  abatement,  that  others  are  liable  vvith  the  defendant,  does 
not  admit  any  contract,  but  merely  precludes  an  objection  a  second  time, 
for  wants  of  parties.  Such  plea  is  evidence  against  those  who  plead  it, 
that  those  who  are  alleged  to  ^be  partners,  are  such  ;  but  others  must 
be  proved  to  bo  partners  in  the  ordinary  way. —  Witmer  v.  Schlatter,  2 
Rawle,  359. 

Joint  debtors  must  be  sued  jointly  ;  and  if  all  are  not  joined,  it  must 
be  plead  in  abatement.  —  Ziele  v.  Executors  of  Campbell,  2  J.  C,  382. 
Robertson  v.  Smith,  18  J.  R.,  459. 

In  an  action  in  form  ex  delicto,  for  a  tort  by  several,  the  plaintiff  may, 
in  general,  sue  any  of  them,  and  the  non-joinder  of  others  cannot  be 
pleaded  in  abatement.  —  Lorve  v.  Mumford,  14  /.  R.,  426. 

\\hen  it  appears  on  the  record,  that  a  joint  contractor,  who  is  alive,  ia 
not  joined  in  the  suit,  advantage  may  be  taken  thereof,  in  any  stage  of  the 
case.  And  in  an  action  on  a  note,  described  to  have  been  made  by  four, 
and  two  only,  sued,  and  the  others  not  alleged  to  be  dead.  So,  of  an  ac- 
tion, against  one  obligor  only,  if  the  declaration  describe  the  bond  as  joint, 
and  do  not  allege  that  the  other  is  dead. —  Cook  v.  Berkley,  3  Call.,  378. 
S.  P.  Leftwichv.  Berkley,  1  H.  ^  M.,  61.  Saunders  v.  Wood,  1  Mumf,, 
3 


18  ABATEMENT. 

406.  Newell  v.  Wood,  lb.,  555.  Harwood  v.  Roberts,  5  (jreenlf.,  44J. 
Newman  v.  Graham,  3  Mum/.,  187.  But  if  the  bond  be  spread  upon  the 
record  by  oyer,  and  appear  to  be  a  joint  and  several  bond,  the  defect  in 
the  declaration  is  obviated.  And  if  it  appear  on  the  record,  that  one  of 
several  obligors,  was  a.  feme  covert,  at  the  time  of  executing  the  contract, 
the  declaration  against  the  others,  only  will  be  supported.  — iWerediYA  v. 
Duval,  1  Mumf.,  76.     Ela  v.  Card,  2  A'.  Hamp.,  175. 

A  plea  in  abatement  that  other  persons  ought  to  have  been  joined  as 
defendants,  needs  not  set  forth  the  places  of  abodes,  and  additions  of  the 
persons  omitted.  — £/a  v.  Rand,  3  N.  Hamp.,  95.  Where  the  defendants 
have  once  abated  the  suit,  by  pleading  the  non-joinder  of  other  joint  con- 
tractors, a  similar  plea  to  a  second  action  cannot  be  pleaded,  though  offered 
by  defendants  who  were  not  parties  to  the  first. —  Witmer  v.  Schlatter,  15 
Serg.  <^  Rawl,  150.  2  Rawles,  359.  Sed  vide  3  £a5^70,71.  Gould's 
Pleading,  282. 


MISNOMER. 

1.  May  not  tlie  misnomer  of  the  defendant,  be  pleaded  in  abatement  ? 

It  may  ;  but  one  defendant  cannot  plead  the  misnomer  of  another. — 
Com.  Dig.  Abatement,  F.  18.  Lutw.,  36.  1  Chit.  PL,  440.  Archi.  Civ. 
P/.,  312.     Atkinson  v.  Clapp.,  1   Wend.,  71. 

Misnomer  of  parties  in  a  writ  or  indictment,  must  always  be  pleaded 
in  abatement,  or  the  right  to  the  exception  is  lost.  —  Mann  v.  Carley,  4  Cow., 
148.  Seely  v.  Boon,  Cox,  138.  Porter  v.  Cresson,  10  Serg.  <Sf  R.,  257. 
Smith  V.  Bowker,  1  Mass.,  76.  Gilbert  v.  Nantucket  Bank,  5  Ibid,  97. 
Kincaid  v.  Howe,  10  lb.,  205.  Commonwealth  v.  Dedham,  16  Ih.,  146. 
Jewet  V.  Burrowes,  15  lb.,  469.  Scull  v.  Briddle,  2  Wash.  C.  C,  200. 
Pate  V.  Bacon,  6  Mumf.,  2\9.  A  mistake  in  the  declaration,  as  to  the 
christian  name  of  a  plaintiff,  cannot  be  taken  advantage  of,  except  by  a 
plea  in  abatement.— CoZ/wja«  ct  al.  v.  Collins,  2  H.,  569.  Misnomer  in 
the  capias,  and  a  variance  between  the  name  in  the  writ  and  declaration, 
must  be  pleaded  in  abatement. — Pendleton  v.  Bank  of  Kentucky,  1  Monr., 
174.  Misnomer  of  addition  of  place,  may  be  pleaded  in  abatement. — • 
Smith  V.  Bowker,  1  Mass.,  76.  It  is  a  good  plea  in  abatement,  that  a  party 
sues,  or  is  sued,  by  his  surname  only.—  Chappcll  v.  Proctor,  Harper,  49. 
Seely  V.  Boom,  Cox,  138.  Labat  v.  Ellis,  1  Taylor,  148.  Lanier  v.  Cock, 
6  Mumf,  580. 

A  plea  of  misnomer,  is  as  valid  in  the  action  of  ejectment,  as  in  other 
actions.  —  Dixon  v.  Cavaneagh,  1  Overt.,  365. 

Copartners  must  sue  and  be  sued  in  their  proper  names  ;  it  is  not 
sufficient  to  use  the  style  of  the  firm.  — Bentley  v.  Smith,  3  Caines,  170'. 
Tondtnson  v.  Burke,  5  Halst  ,  295.  Porter  v.  Cresson,  \0  S.  6f  R.,257. 
Pate  V.  Bacon,  6  Mnmf,  219.  Seclcy  v.  Schenck,  1  Pen.,  75.  Crandall 
V.  Denny,  Ibid,  137.  Burnes  v.  Hall,  2  Penn.,  984.  See  form  of  plea  in 
abatement,  for  a  misnomer  of  the  defendant,  in  3  Samid.,  209,  and  see 
further,  1  .SViou;.  394.  Carth.,307.  Comb,  IS8.  I  Lutw.,  10.  5  T.  R., 
487  —  5.     When  one  joint  tenant,  [Cofn.  Dig.  Abatement,  F.  5,)  or  one  ten- 


ABATEMENT.  19 

ant  in  common,  in  cases  where  they  ought  to  be  joined,  {Ibid,  F.  6,)  is 
sued  alone,  he  may  plead  in  abatement. 

But  the  omission  or  insertion  of  a  middle  name  incorrectly,  cannot  be 
pleaded  in  abatement. — Franklin  v.  Tallmade,  5  J.  R.,  84.  The  law 
allows  of  but  one  christian  name,  middle  names  are  disregarded.  Roose- 
velt V.  Gardiner,  2  Cow.,  463.  Keene  v.  Meade,  3  Pet.,  7.  Franklin  v. 
Tallmadge,  5  Johns.  84.  Nor  can  defendant  plead  that  an  alias  dictus,  was 
subjoined  to  his  name,  and  that  the  .first  name  was  the  right  owe.  — Reed 
V.  Lord,  4  /.  R.,  118. 

Where  a  name  appears  to  be  a  foreign  one,  a  variance  of  a  letter, 
which,  according  to  the  pronunciation  of  that  language,  does  not  vary  the 
sound,  is  not  a  misnomer:  as  Petris  for  Petrie.  —  Petrie  v.  Woodworth,  3 
Caines'  R.,  219.  Commonwealth  v.  Gillespie,  1  S.  6f  R.,  479.  Tibbitsv. 
Kial,  2  N.  Hamp.,  557.  So,  it  seems,  if  an  abbreviation  or  corruption  of 
a  true  name,  when  by  common  use,  the  true  and  corrupted  name  are  taken 
to  be  the  saivae.  — Gordon  v.  HolUday,  1  Wash.  C.  C,  285.  If  the  sur- 
name of  the  obligor  in  a  bond,  varies  by  a  slight  misspelling,  from  that  in 
the  subscription,  he  may  be  sued  by  the  name  subscribed,  without  an  alias 
dictus.— Merideth  v.  Hinsdale,  2  Caines'  R.,  362.  A  defendant  may  be 
sued  on  an  instrument,  by  the  name  he  has  signed,  though  differing  in 
sound  from  his  true  name.  —  Merideth  v.  Hinsdale,  2  Caines,  362. 


QUALITIES  OF  PLEA  IN  ABATEMENT. 

1.  May  not  a  writ  be  abated  in  part,  and  remain  good  for  the  residue  ! 

It  may  ;  and  the  defendant  may  plead  in  abatement  to  part,  and  de- 
mur, or  plead  in  bar,  to  the  residue  of  the  declaration.  —  1  Chit.  PI.,  444. 
2  Sound.,  210.  As  these  pleas  delay  the  trial  of  the  merits  of  the  action, 
the  greatest  accuracy  and  precision  are  required  in  framing  them  ;  they 
should  be  certain  to  every  intent,  and  be  pleaded  without  any  repugnancy. 
—  3  7.  R.,  186.  Willis,  42.  2  Bl.  R.,  1096.  2  Saund.,  298,  b.  n.  1. 
Com.  Dig.,  1,  11.  Co.  Litt..,  393.  Cro.  Jac,  82.  And  must,  in  general, 
give  the  plaintiff  a  better  writ.  This  is  the  true  criterion  to  distinguish  a 
plea  in  abatement  to  a  plea  in  bar. — 8  T.  R.,  515.  Bro.,  139.  1  Saund., 
274,  n.  b.,  284,  n.  4.  2  B.  df  P.,  125.  4  T.  R.,  227.  6  East,  600. 
Com.  Big.  Abat.,  J.,  1,2.  Dai/,  28.  3  Mass.,  2^.  5  Mass.,  362.  1 
Hayw.,  501.  2  Ld.  Raym.,  1178.  \  East,  634:.  Great  accuracy  is  also 
necessary  in  the  form  of  the  plea,  as  to  the  commencement  and  conclu- 
sion, which  is  said  to  make  the  plea. — Latch,  178.  2  Saund.,  209.  C. 
D.     3  /.  R.,  186.     1  Bouvier's  Law  Diet.,  7,  p.  14. 

WHAT,  WHEN,  AND  HOW  PLEADED  IN  BAR,  OR  ABATE- 
MENT— MODE  OF  PLEADING,  &c. 

1.  Can  a  plea  in  abatement,  be  put  in  after  plea  in  bar  ? 

Not  unless  under  special  circumstances,  of  which  the  court  must 
judge.— Clapp  V.  Balch,  3  Greenlf.,  216.     S.  P.  Stone  v.  Proctor,  2  Chip., 


20  ABATEMENT. 

114.  Engle  V.  Nelson,  1  Pennsyl,  442.  Ripley  v.  Warran,  2  Pick.,  593. 
Riddle  V.  Stephens,  2  5'.  4"  i^.,  537.  Palmer  v.  Evertson,  2  Cow.,  417. 
Meggs  V.  Choffier,  Hardin,  65. 

A  plea  in  abatement,  e.  ^.  non-joinder  of  others  as  defendants,  cannot 
be  put  in  after  a  plea  in  bar.  —  Palmer  v.  Evertson,  2  Cow.,  417. 

A  plea  in  abatement  is  too  late  after  a  general  imparlance. — McCar- 
ney  v.  McCamp-,  1  Ashm.,  4.  Hinckley  v.  Smith,  4  Watts,  443.  Chain- 
berlin  v.  //lie,  5  Watts,  173.  8  Fer»i.,  400.  Martin  v.  Commonwealth.,! 
Mass.,  347.  Coattes  v.  McCamm,  2  Browne,  173.  Witmer  v.  Schalter, 
15  <S.  ^  i?.,  150.  Cojfln  V.  Jones,  5  Pick.,  61.  Jennison  v.  Hapgood,  2 
>lfA.,  31.  Chambers  v.  Haley,  Peck,  159.  l^Fywan  v.  Dorr,  3  Greenleaf, 
186.  But  it  may  be  pleaded  after  a  special  imparlance,  entered  as  record. 
Coattes  V.  McCamm,  2  Browne,  176.  Purple  v.  Clarke,  5  Pick.,  206.  AZc 
Carney  v.  McCamp,  1  Ashm.,  4. 

A  plea  that  a  plaintiff  was  not  executor,  need  not  be  pleaded  in  abate- 
ment ;  it  may  be  joined  with  the  general  issue,  and  in  pleading  it,  the  de- 
fendant is  not  bound  to  crave  oyer,  and  set  out  the  letters  testamentary ; 
but  it  seems  he  must  do  so.  if  he  wishes  to  set  up  any  matter  in  avoidance 
of  the  letters.  —  Gilherl^s  Executors  v.  Cameron,  16  Wend.,  579. 

Alienage  may  be  pleaded  in  abatement  or  bar. — Jackson  v.  Decker, 
117.  R.,  418.  So,  may  alien  enemy  ;  but  abatement,  in  such  case,  may 
be  considered  most  proper;  as  the  judgment  would  not,  in  either  case,  be 
a  bar  to  a  new  action  on  the  return  of  peace. — Bell  v.  Chap?nan,  10 
/.  R.,  183. 

A  plea  in  abatement,  after,  and  in  addition  to  a  plea  in  chief,  is  a  nul- 
lity, and  need  not  be  answered.  —  Palmer  v.  Greene,  1  Johns.  Cases,  101. 
See,  also,  1  Ashm.,  4.  2  Mu?nf.,  297.  If  defendant,  after  having  pleaded 
in  abatement,  voluntary  plead  to  the  action,  without  a  judgment  of  respon- 
deat, &;c.,  it  is  a  waiver  of  his  first  plea,  which  is  to  be  considered  as  if 
never  filed. —  Wilson  v.  Oliver,  I  Stew.,  46.  Burnhamv.  Webster,  5  Mass., 
266.  5^.  /.  Robertson  v.  Lee,  1  Stew.,  141.  Egerton  v.  Hart,  8  Verm., 
207.  An  arrest  in  violation  of  a  legal  promise  not  to  arrest,  may  be 
pleaded  in  abatement.  —  Steel  v.  Bates,  2  Aik.,  338.  A  defendant  sued  by 
a  wrong  name,  may  plead  the  misnomer  in  abatement,  after  he  has  ap- 
peared and  given  notice  of  his  appearance  specially. — Munney  v.  Carley, 
4  Cow.,  148. 

If  a  plea  in  abatement  conmiences  improperly,  or  concludes  in  bar, 
the  plaintiff  may  demur,  either  in  bar  or  abatement.  —  Roberts  v.  Stewart, 
1  Ycrger,  390.  Whether  a  plea  is  in  abatement,  or  in  bar,  is  to  be  known 
by  its  cowclnsion. '-'Jenkins  v.  Pepoon,  2  J.  C  ,  312.  Executors  of  Schoon- 
maker  v.  Elmendorf,  \0  J.  R.,  49. 

After  a  verdict,  matter  which  abates  the  writ,  cannot  be  pleaded  ;  for 
the  defendant  has  no  day  in  court.  Nor  the  marriage  of  a  woman  plain- 
tiff, after  verdict,  and  before  the  day  in  court,  cannot  be  pleaded  in  abate-i 
ment ;  puis  darieti  continuance. — Alexander  v.  Fisk,  12  /.  /J.,  218. 

A  plea  that  there  are  other  executors,  not  named  in  the  writ,  must 
allege  lliat  tlu^y  were  qualified,  and  took  on  themselves,  the  execution  of 
ihe  will. — Burrow  v.  Sellers,  1  Hayw.,  501. 

If  matter,  which  must  be  pleaded  in   abatement,  is  contained  in  a  plea 


ABATEMENT.  21 

in  bar,  without  being  verified  by  affidavit,  the  plaintiff  may  treat  it  as  a 
nullity,  and  enter  a  default.  — Robinson  v.  Fisher,  3  Caines'  R.,  99. 

Pleas  in  abatement  cannot  be  amended. —  Trendcr  v.  Durant,5  Wen- 
dell, 72. 

Pleas  in  abatement  are  not  favored ;  they  must  be  precise,  or  they 
will  be  ill  on  demurrer.  —  Hayicood  v.  Chestney,  13  Wend.,  495.  Wads- 
worth  V.  Woodford,  1  Day,  28.  Clarke  v.  Warner,  6  Con.,  3551.  Par- 
sons V.  Ely,  2  lb.,  377.  See  also  following  cases.  — iacy  v.  Roberts, 
Brayt.,  20.  Butler  v.  Lowry,  3  Verm.,  14.  Payne  v.  Baco7i,  1  Root,  109. 
Chambers  V.  Haley,  Peck,  159.  Cleveland  v.  Welsh,  A  Mass.,  591.  Rath- 
bone  V.  Rathbone,  4  Pick.,  89.  Martin  v.  Blodget,  1  -4iA;.,  375.  1  Breese, 
96.  Campbell  v.  S^«7e5-,  9  ilfa^.?.,  217.  0<i^  v.  Warraw,  14  Masi'.,  239. 
5ar.y;o«;  v.  i^05.se<it,  11  Ma.?.y.,  250.  Robbins  v.  Hill,  12  PecA,  569.  &'. 
P.  Thompson  v.  Hatch,  3  Pick.,  512.  Eaton  v.  Whittaker,  6  Pick.,  465. 
H'^t/.yoTi  v.  Hamilton,  4  .S'.  4-  P.,  238.  Bradley  v.  T'FeM,  1  i¥?/OT/,  284. 
Gaines  \.  Conn,  2  Dana,  231.  Lacroix  v.  McQuart,  1  Miles,  42.  Yea^ora 
V.  Lynn,  5  Pe^,  231.  Hasteller  v.  Kaufman,  \l  S.  Sf  R.,  146.  Howard 
V.  Rawson,  2  Leigh,  733.  Alexander  v.  Fink,  12  Johns.,  218.  Mi7/j  v. 
Bishop,  Kirby,  6.  <S<a^e  v.  Newmans,  2  Car.  Law  Repos.,  75.  Roberts  v. 
Stewart,  1  Y^ero-.,  390.  Furniss  v.  Ellis,  2  Brock.,  14.  <S7a^e  i?ara/t  v. 
Hinton,  1  Dew-,  397.  Nelson  v.  Sweet,  4  N.  Hamp.,256.  Tucker  v.Per- 
ley,  5  iV.  Hamp.,  345.  Brigham  v.  £.y^e,  2  Pick.,  420.  Mantz  v.  Hendley, 
2  H.  6f  M.,  308.  ProM;7ie  v.  Gordon,  1  Greene,  165.  S.  P.  G/«W  v. 
Richardson,  6  Pick.,  369.  Boston  Type  Foundry  v.  Spooner,  5  Ferm., 
93.  yaw  Alstyne  v.  Dearborn,  2  Wen J.,  586.  ifeZ/y  v.  Mullany,  2  Hall, 
205.  Day  v.  Hamburgh,  1  Browne,  77.  Young  v.  Stringer,  5  Hayw.,  32, 
Richmond  v.  Tallmadge,  16  Johns.,  307.  Papp  v.  Elliott,  2  Dall.,  184. 
Robinson  v.  Fisher,  3  Caines,  99.  Marston  v.  Laivrence,  1  Johns.  Cases, 
397.  Tally  v.  Hamilton,  1  //a//,  222.  Gilbert  v.  Vanderpool,  15  Johns., 
242.  P«Ae  v.  Bagley,  4  iV.  Hamp.,  76.  5^.  P.  Clarke  v.  Browne,  6  iVety 
Hamp.,  434.  Jenkins  v.  Pepoon,  2  Johns.  Cas.,  312.  Schoonmaker  v. 
Elmendorf,  10  Johns.  49.  Hargis  v.  Ayres,  8  Yer^.,  467.  Leathers  x. 
Maglessin,  2  Monr.,  64.  Pattee  v.  Harrington,  11  Pick.,  221.  Kellogg^s 
Case,  6  Vem.,  511.  ifor.?e  v.  Calley,2  N.  Hamp.,  222.  7  Ma^.?.,  475. 
7lfa«Z^  v.  Hendley,  2  H.  6f  M.,  308.  Clifford  v.  Conney,  1  ilfa5.y.,  495. 
^rooAi-  V.  Patterson,  1  J.  C,  328.  Shawv.  Dutcher,  19  H'^enJ.,216.  De 
Forrest  v.  Jewett  <Sf  Parsons,  1  /f-j  137. 


DEFECTIVE  OR  IMPROPER  SERVICE  OF  WRIT,  &c. 

1.  Is  it  not  a  good  cause  to  abate  a  writ,  that  it  was  served  by  an  offi- 
cer, or  other  person,  not  legally  authorized  to  serve  it  ? 

It  is. — Brewer  v.  A''ew  Glocester,  14  ilfai'.S'.,  216. 

An  arrest  in  violation  of  a  legal  promise  not  to  arrest,  may  be  pleaded 
in  abatement. — SieeZe  v.  Bates,  2  Aik.,  338. 

In  New  Jersey  a  female  cannot  be  arrested  for  debt ;  the  process 
must  be  by  summons.  — i5/z^/if  v.  xlfeeAer,  2  Halst.,  97. 


22  ABATEMENT, 

A  writ  directed  to  the  sheriff  may  be  served  by  his  general  or  special 
deputy  though  not  particularly  named. —  Clarke  v.  Bray,  Kirhy,  237. 

In  an  action  against  a  minor  or  other  person  under  guardianship  the 
writ  will  not  abate  because  the  guardian  of  the  defendant  was  not  notified. 

—  Potter  V.  Wright,  Brayt.,  21.      Snow  v.  Antrim,  Kirhy,  174. 

It  is  cause  to  abate  a  writ  that  it  was  not  served  the  number  of  days 
proscribed  by  law,  before  the  return  day. — Pcdrick  v.  Shaw,  1  Pen.  57. 
Guilford  V.  Jamaica,  2  Chip.,  104.  Bullard  v.  Nantucket  Bank,  5  Mass., 
99.  1  Hayw-,  286.  Payne  v.  Bacon,  1  Root,  109.  Butler  v.  Lowry,  3 
Verm.,  14. 

In  computing  time  between  service  and  return,  either  the  day  of  ser- 
vice, or  of  return  is  to  be  excluded.  — PoWarci  v.  Yoder,  2  Marsh.,  267. 

An  appearance  by  attorney  cures  a  defect  in  the  service  of  process. 

—  1  Hayw.,  405.     Knox  v.  Sumncrs,  3  Crunch,  496. 

If  defendants  property  is  attached,  and  no  summons  is  left  for  his 
appearance  when  and  where  the  writ  was  returnable,  the  writ  is  abate- 
able. — Nelson  v.  Sweet,  4  New  Hamp.,  256. 

If  a  mistake  in  the  writ  be  carried  into  the  declaration,  or  rather  if 
the  declaration  which  is  presumed  to  correspond  with  the  writ  or  bill,  be 
incorrect  in  respect  of  some  extrinsic  matter,  it  is  then  open  to  the  de- 
fendant to  plead  in  abatement  to  the  writ  or  bill. —  1  B.  4"  Pf  648.  10 
Mod.,  210.  And  there  is  no  plea  to  the  declaration  alone  but  in  bar. — 
10  Mod.,  210.  2  Saund.,  209.  Pleas  in  abatement  to  the  writ  or  bill, 
and  to  the  form  or  to  the  action. —  Com.  Dig.  Abatement,  H.  1.  17.  These 
of  the  first  description  were  forjnerly  either  matter  apparent,  on  the  face 
of  the  writ.— Com.  Dig.  Ahatefnent,  H.  1,  or  matters  dehors.  Id.,  H.  17. 
Formerly  very  trifling  errors  were  pleaded  in  abatement. — 1  Lutw.,  25. 
Lilly's  Ent.,  5.  2  Rich.  C.  P.,  5.  8.  1  Stra.,  556.  Lord  Raym.,  1541. 
2  Inst.  668.  3  B.  <^  P.,  395.  But  as  oyer  of  the  writ  can  no  longer  be 
had,  an  omission  in  the  defendant's  declaration  of  the  defendant's  addition, 
which  is  not  necessary  to  be  stated  in  a  declaration,  can  in  no  case,  be 
pleaded  in  abatement.  — 1  Sau7id. ,  318,  n.  3.    3B.  <^P.,395.    7  East.,  382. 

Accepting  servic<3  dispenses  with  actual  service  by  the  officer  ;  but 
is  not  to  be  considered  as  an  appearance. — Doulcvy  v.  Cooper,  2  N.  <Sf 
M.,  548.  But  acknowledgment  of  service  made  by  husband  and  wife  on 
the  back  of  the  writ,  does  not  dispense  with  actual  service  on  her. — Gay- 
lord  v.  Payne,  3  Con.,  258. 

Service  of  a  civil  process  on  a  day  appointed  by  proclamation  of  the 
governor  for  public  thanksgiving,  &c..  is  prohibited  by  statute  in  Connec- 
ticut, and  the  process  abateable,  being  void. —  Gladwin  v.  Lewis,  6  Conn., 
49.     And  in  Vermont,  service  of  a  writ  after  sunset  on  Saturday  is  illegal. 

—  Selectmen  of  Cavandish  v.  Turnpike  Co.,  2  Verm.,  531. 

Acknowledgment  of  service  by  an  attorney  does  not  bind  the  party, 
unless  the  attorney  have  special  authority  for  that  purpose. — Whilley  v. 
Baker,  1  Root,  406. 

Defective  process  or  service  must  be  accepted  to  by  motion  or  plea 
in  abatement,  appearing  and  pleading  in  chief  are  a  waver  of  the  de- 
fect.—WZ/es^^r  V.  Lampman,  14  .Johns.,  481.  Morse  v.  Callcy,  5  lb.,  223. 
Pollard  v.  Pickett,  4  Cranch.  421.  Wood  v.  Lide,  lb.,  180.  Gilbert  v. 
Nantucket  Bank.,  5   Mass.,  93.     Farran   v.  United  States,  3  Peters',  459. 


ABATEMENT.  '  23 

Rowley  r.  Stoddard,  7  Johns.  207.  Coit  v.  Sheldon,  1  Tyler,  301.  Twi- 
berville  v.  Long,  3  H.  <^  M.,  309.  7)en  v.  ^^e/,  4  Hayw.,  162.  See  also 
following  cases.  — Embra  v.  Sillman,  1  i?oof,  128.  Badlam  v.  Tucker,  1 
PicA,  389.  Rand  v.  Rand,  4  iV.  Harnp.,  267.  Clarke  v.  Freeman,  5 
Ferwj.,  122.  Putny  v.  Cram,  5  iV.  Hamp.,  174.  Nelson  v.  Cummins,  1 
Ouer^,  430.  Jacobs  v.  Mellen,  14  Mass.  132.  Guild  v.  Richardson,  Q 
Pick.,  364.  Lawrence  v.  Smith,  5  Mass,  362.  <SV//  v.  iJawA  o/"  United 
States,  5  Conn.,  ''102.  Nelson  v.  Omealy,  6  Greenlf.,  218.  Slay- 
ton  V,  Inhabitants  of  Chester,  A  Mass.,  478.  Nelson  v.  Swett,  4  iV.  Hamp., 
256.  United  States  Bank  v.  Taylor,!  Verm.,  116.  Guild  v.  Richardson, 
6  Pick.,  364.  Fostor  v.  Haddock,  6  A^.  Hamp.,  217.  Frean  v.  Cruik- 
shanks,  3  McCord,  84.  Taylor  v.  Cooke,  Coxe,  54.  Sebree  v.  Clay,  3 
Marsh.,  552.  Smith  v.  Morrison,  3  Marsh.,  81.  Caldwell  v.  Harp.  2 
McCord,  275.  Knsman  v.  Coi'ife,  1  iVfonr.,  211.  ilfoo?-e  v.  PaZZ,  2  J5e^>i., 
330.  Bridges  v.  Ridgely,  2  iJ^^^,  396.  Select  v.  Olmstead,  1  Poof,  497. 
Cregg  V.  Sumners,  1  McCord,  461.  LarA  v.  Chappell,  1  McCord,  566. 
Alston  V.  Bowers,  \  N.  <^  M.,  458.  Bujac  v.  Morgan,  3  Yeates,  258. 
iori  V.  Strong,  1  Poof,  475.  M«7Z.y  v.  Bishop,  Kirby,  4.  Pz<ff.y  v.  Fran- 
cais,  4  Conn.,  424.  Smilie  v.  Runnells,  1  Ferwj.,  148.  Southmaid  v. 
Backus,  3  Conn.,  474.  /S.  P.  Bishop  v.  Pw//,  1  Pay,  141.  PorcZ  v.  Mwn- 
5ora,  1  ,Sowf^,  93.  1  Black/.,  193.  1  TFa^A.,  9.  ilfcCa/Z  v.  Price,  1 
McCord,  82.  Barton  v.  Petit,  7  Crunch,  194.  Sherrodv.  Davis,  1  JIayw., 
282.  Greer  v.  M//er,  2  Ouerf.,  187.  f/eZm  v.  Fa?i  P/eef,  1  PZacA/,  342. 
Tappan  v.  Bruen,  5  Mass.,  196.  CaZZ  v.  Hagger,  8  Mass.,  423.  Dennett 
V.  CAzcA-.,  2  Green/.,  192.  Dillman  v.  Schultz,  5  S.  (Sj-  P.,  36.  >S.  P.  7 
Cranch,  201.  i/a/Z  v.  Williams,  8  Greenleaf,  434.  Morris  v.  Knight,  1 
Blackf.,  106.  Colman  v.  Graeter,  lb.,  388.  Ballou  v.  Hulbert,  1  Johns., 
62.  Dando  v.  Tremper,  2  76.,  287.  Jackson  v.  Hoag,  6  76.,  59.  PanA 
o/"  Columbia  v.  Newcombe,  lb.,  98.  Carman  v.  Townsend,  6  Wend.,  206. 
Bennett  v.  Howard,  2  Pay,  416.  Bulkley  v.  Starr,  2  Pay,  552.  IFo/coff 
V.  Dwight,  2  Pay,  405.  Dcnslow  v.  Moore,  1  Poy,  290.  Butts  v.  Fran- 
cis, 4  Conn.,  424.  Kipple  v.  Coleman,  1  Poof,  407.  Gladwin  v.  Lewis, 
6  Conn.,  49.  Selectmen  of  Caiiandish  v.  Turnpike  Co.,  2  Ferwj.,  534, 
Pollord  V.  Picket,  4  Cranch,  421.  Wood  v.  P«/e,  7Z».,  180.  Gilbert  v. 
Nantucket  Bank,  5  Mass-,  93.  Farrar  v.  United  States,  3  Pef.,  459. 
Roioley  v.  Stoddard,  7  Johns.,  207.  Co?f  v.  Sheldon,  1  Tyler,  301.  Tu- 
berville  v.  Long,  3  77.  ^  ikf.,  300,  Pen  v.  PseZ,  4  Hayw.,  162.  77arf  v. 
Huckins,  6  Mass.,  399.  Pixley  v.  Mitchell,  7  Co»y;.,  366.  Guilficld  v, 
Jamaica,  2  Chip.,  104.  Huntingdon  v.  Spooner,  3  Ferm.,  515.  Browne 
V.  Gordo7i,  1  Greenl.,  165.  ^^ajns'  v.  Wiscasset  Bank,  1  Greenl.,  361. 
Merchants'  Bank  v.  Cooke,  4  Pick.,  405.  Ga_§-e  v.  Graffam,  1 1  37a5.s., 
181.  Colby  V.  Dillingham,  7  Mass  ,  475.  Dunmore  Manufacturing  Co. 
V.  Rockwell,  Brayt.,  18.  Bristol  v.  Marblehead,  1  Greenleaf  82.  Fowler 
V.  Bebee,  9  ilfo^i-.,  231.  Mor.se  v.  CaZZcy,  5  iV.  77am;).,  223.  IFootZ  v. 
Ross,  11  Mass:,  271.  Chapman  v.  Shaw,  3  Greenleaf,  372.  Hearsay  t. 
Bradbury,  9  Mass.,  95.  VFinrf^oni  v.  Hampton,  1  Poof,  175.  Lawrence 
V.  Kingman,  Kirby,  6.  Knox  v.  Sumners,  3  Cranch,  498.  PeZZ  v.  Chip- 
man,  2  Tyler,  423.  Johnson  v.  Hills,  1  Poof,  504.  Pnoe  v.  Frisbie,  5 
Pay,  122.  Ca^e  v.  Humphrey,  6  Conn.,  130.  TyZer  v.  Tyler,  2  Root., 
519.     Treaf  v.    Carrington,  I   Poof,  356.     Thatcher  v.  Heacock,  1  Poof, 


24  ABATEMENT. 


284.  Miller  v.  Haijnes,  Brayt.,  21.  Rand  v.  Proprietors  of  Locks,  6fCt 
on  Con.  River,  3  Day,  441.  Backus  v.  Rogers,  8  Johns.,  346.  Seers  v, 
Blakcsly,  1  iioo^,  54. 


JUDGMENT, 

1.   Will  defects  in  tlie  declaration  be  noticed  by  the  court  on  a  demurrer 
to  a  plea  in  abatement  ? 

They  will  not.— Clifford  v.  Coney,  1  3/a5.y.,  500. 

When  the  plaintiff  takes  issue  on  the  plea  and  it  is  found  against  the 
defendant,  judgment  is  final,  and  the  same  jury  who  found  the  issue  should 
assess  the  plaintiff's  damages.  —  McCartee  v.  Chambers,  6  Wend.,  694. 
Dodgo  V.  Morse,  3  N.  Hamp.,  532.  Jewett  v.  Davis,  6  Ih.,  518.  Mehaffy 
V.  Share,  2  Pennsyl.,  361.  HolUngsvwrth  v.  Duane,  Wallace,  57.  Moore 
V.  Morton,  1  /i.,  234.  But  if  the  judgment  be  respondeat  ouster  only  the 
defendant  cannot  assign  it  for  error  as  it  is  for  his  advantage.  — /oAn  v. 
Clayton,  1  Blackf.,  54.  In  chancery  abatement  is  not  necessarily  a  de- 
struction of  the  suit,  like  an  abatement  at  law,  it  is  merely  a  suspension 
of  the  progress  of  the  suit.  —  Hoxie  v.  Carr,-1  Sumner,  178. 

Where  an  issue  of  fact  on  a  plea  in  abatement  is  found  against  the 
defendant,  the  judgment  is  final  and  not  a  rcspondeas  ouster. — Haight  v. 
Holley,3  Wend.,  258.  The  judgment  on  demurrer  to  a  plea  in  abate- 
ment is  rcspondeas  ouster. — Haight  v.  Holley,  3  Wend.,  258.  The  Bank 
of  Orange  v.  Browne,  3  Wend.,  158.  The  judgment  of  a  plea  of  former 
recovery  found  against  the  defendant  is  quod  respondeat  ouster. — Marstin 
V.  Lawrence,  1  J.  C,  397.      C.  C,  97. 


SUPREME  COURT  OF  THE  UNITED  STATES. 

Where  any  suit  shall  be  depending  in  any  court  of  the  United  States,- 
and  either  of  the  parties  shall  die  before  final  judgment,  the  executor  or 
administrator  of  such  diseased  party,  who  was  plaintiff,  petitioner,  or  de- 
fendant, in  case  the  cause  of  action  doth  by  law  survive,  may  prosecute 
or  defend  such  suit  until  final  judgment ;  and  the  defendant  or  defendants 
shall  answer  thereto  accordingly  ;  and  the  court  before  whom  such  cause 
may  be  depending,  shall  hear  and  determine  the  same,  and  render  judg- 
ment as  the  case  may  require.  And  if  such  executor  or  administrator 
having  been  duly  served  with  a  scire  facias  from  the  office  of  the  clerk  of 
the  court  where  such  suit  is  depending,  twenty  days  beforehand,  shall 
neglect  or  refuse  to  become  a  party  to  the  suit,  the  court  may  render  judg- 
ment against  the  estate  of  the  deceased  party,  in  the  same  manner  as  if 
the  executor  or  administrator  had  voluntary  made  himself  a  party  to  the 
suit ;  and  the  executor  or  administrator  who  shall  become  a  parly,  shall,  I 
upon  motion  to  the  court,  be  entitled  to  a  continuance  of  the  cause  until 
the  next  term  of  the  court.  And  if  there  be  two  or  more  plaintiffs  or  de- 
fendants, and  one  or  more  of  them  shall  die,  if  the  cause  of  action  shall  i 
survive  to  the  surviving  plaintiff  or  plaintiffs,  or  against  the  surviving  de-  ' 


ACCIDKXT.  25 

fendant  or  defendants  the  writ  or  action  shall  not  be  thereby  abated  ;  but 
such  debt  being  suggested  upon  the  record,  the  action  shall  proceed  at» 
the  suit  of  the  surviving  plaintiff  or  plaintitl's,  against  the  surviving  de- 
fendant or  defendants.  Act,  24th  September,  1789,  sec.  31.  See  also 
Green  v.  Watkins,  6  Wheat.,  260.  Wilson  v.  Codman's  Ex'rs.,  3  Cranch., 
193.     McCaul  v.  Lecamp,  2  Wheat.,  111. 

In  real  actions,  the  death  of  either  parties  before  judgment,  abates 
the  suit  ;  and  if  the  heir  be  made  parlies  by  order  of  the  court  in  which 
the  suit  is  brought,  and  judgment  be  entered  against  them  by  default,  for 
want  of  a  plea,  upoi!  a  summons  and  count  against  the  original  defendant, 
they  may  sue  out  a  writ  of  error,  and  reverse  the  judgment.  — ilfacA-er'^ 
Hetrs  V.  Thomas,  7  Cr.,  530.  Green  v.  Watkins,  6  Wheat.,  262.  Ad- 
miralty suits  do  not  abate  the  death  of  a  party. — Pcnhalhw  v.  Duane,  3 
Ball. ,'86. 

No  summons,  writ,  declaration,  return,  process,  judgment,  or  other 
proceedings  in  civil  causes  in  any  of  the  courts  of  the  United  States,  shall 
be  abated,  arrested,  quashed  or  reversed,  for  any  defect  or  want  of  form. 
Act,  24th  September,  1789,  sec.  32. —  Course  v.  Stead,  2  Ball,  22. 
Mossman  v.  Higginson,  4  Ball.,  12. 

If  the  administratrix  of  the  plaintiff  in  whose  name  the  suit  had  been 
revived  by  scire  facias  upon  the  death  of  the  intestate  after  issue  joined, 
intermarry,  and  such  intermarriage  be  pleaded  j9Ui.y  darricn  continuance, 
the  scire  facias  is  thereby  abated,  but  not  the  original  suit,  and  a  new  scire 
facias  may  issue  to  revive  the  original  suit  in  the  name  of  the  husband 
and  administratrix,  that  she  may  prosecute  the  suit  to  final  judgment. — 
McCaul  v.  LeCamp,  2  Wheaton,  111. 


ACCIDENT. 

1.  What  does  the  term  accident  signify  in  chancery  practice  ? 

It  signifies  such  unforseen  events,  misfortunes,  losses,  acts,  or  omis- 
sions, as  are  not  the  result  of  any  negligence  or  misconduct  in  the  party, 
—  Francis^  Maxim,  M.  120,  p.  87.  1  Story  on  Equity,  ^  78.  Jeremy  de- 
fines it,  as  used  in  courts  of  equity,  to  be  "  an  occurrence  in  relation  to  a 
contract  which  was  not  anticipated  by  the  parties,  when  the  same  was  en- 
tered into,  and  which  gives  an  undue  advantage  to  one  of  them  over  the 
other  in  a  court  of  law."  — /er.  on  Eq.,  358.  This  definition  is  objected 
to,  because,  as  accidents  may  arise  in  relation  to  other  things  besides  con- 
tracts, it  is  inaccurate  in  confining  accidents  to  contracts  ;  besides,  it  does 
not  exclude  cases  of  unanticipated  occurrences,  resulting  from  the  negli- 
gence or  misconduct  of  the  party  seeking  relief.  — &7ory  on  Eq.,  378,  note 
1.  In  general,  courts  of  equity  will  relieve  a  party  who  cannot  obtain  jus- 
tice in  consequence  of  an  accident,  which  will  justify  the  interposition  of 
a  court  of  equity.  The  jurisdiction  being  concurrent,  will  be  maintained 
onjy,  first,  when  a  court  of  law,  cannot  grant  suitable  relief ;  and  secondly, 
when  the  party  has  a  conscientious  title  to  relief.  There  are  many  acci- 
dents supplied  in  a  court  of  law  :  as  loss  of  deeds,  mistake  in  receipts 
and  accounts,  wrong  payments,  death,  which  makes  it  impossible  to  per- 
4 


26  ACCIDENT. 

form  a  condition  literally,  and  a  multitude  of  other  contingencies  ;  and 
ftiany  cannot  be  redressed  even  in  a  court  of  equity  ;  as  if  by  accident  a 
recovery  is  ill  suffered,  a  contingent  remainder  destroyed,  or  a  power  of 
leasing  omitted  in  a  family  settlement.—  1  Bouvier^s  Law  Dictionary,  p.  37. 
The  student  will  probably  obtain  some  information  on  this  head,  by  con- 
sulting the  following  ca.ses.  —  Arfmtage  v.  Wadstvorth,  1  Madd-  R.,  189  to 
193.  Atkinson  v.  Leonard,  3  Bro.  Ch.  R.,  218.  Beames'  Eq.,  hy  Jeremy, 
111.  1  Fonhl.  Eq.,  b.  1 .  ch.  1 ,  sec.  3,  note  F.,  p.  12.  Benson  v.  Baldwin,  1 
Atk.,  598.  Cooper  Eq.  PL,  130.  Brooks  v.  Jennings,  1  Mod.  Rep.,  174. 
Britton  V,  Balthurst,  3  Lev.,  115.  Brisbane  v.  Dacres,  5  Taunt.,  143,  159. 
Burtenshaw  v.  Gilbert,  Cooper  R.,  49.  Barrisfordv.  Done,  1  Vermont,  98. 
Bullock  V.  Domit,  6  T.  R.,  650.  Bricknock  cj-  Canal  Co.  v.  Pritchard,  6 
T.  ii.,  750.  5a//bur  v.  IFes^on,  1  T.  R.,  310.  ^rom/y  v.  Holland,  7 
Ves.,  19,  20.     7iroif«e  v.  //j^o-^,  4  7e5.,  709.     5  Fe^.,  495.     8  Fes.,  561. 

2  C/ionce  o«  Powers,  ch.  23,  ^  1.  Blimdell  v.  Brettagh,  17  Fes.,  232,  240. 
1  Cowpcr^s  Public  Records,  357.  4  /ns?.,  84.  Co?n.  Dig.  Chan.  3,  f .  8. 
Com.  Dig.  Chan.  4,  Z).  10.  Cowper^s  Eq.  Pleading,  129,  ch.  3.  Chitty 
on  Bills,  p.  290.  CoZ/e^  v.  Jacques,  1  cA.,  Cas.,  120.  CocAs  v.  Foley,  1 
Ferr/i.,  357.  Cookes  v.  Hellier,  1  Fes.,  234.  Clavering  v.  Clavcring,  2 
Ves. ,232.  Cary's  Rep.,  1,2.  7  Fes.,  273.  Chainherlain  v.  Chamber- 
lain, 2  Freem.,  141.  Coppinv.  Coppin,  2  P.  Will.,  296.  Croft's  Ex'rs. 
V.  Lyndsy,  2  Freem.  R.,  1.  2  ^y.  Jli.,  452.  Chesterfield  v.  Bolton,  Com. 
R.,  627.  Dorner  v.  Fortesque,  3  AzA.,  132.  Davis  v.  Socfrf,  4  Pnce,  176. 
jDMA:e  o/"  Leeds  V.  Powel,  1  Fes.,  171.  Di^ie  <)/'  Bridgwater  v.  Edwards,  4 
/jVo.  Pari.,  C,  139.  Z)wAe  o/"  Leeds  v.  iX'^ew  Radner,  2  Bro.,  ch.  338,  518. 
Davis  V.  Monkhouse,  Fitzgib.  R.,  76.  Davis  v.  Wattier,  1  >Sw7i.  «^  Slew., 
463.  Doe  v.  Sandham,  1  T.  i^.,  705,  710.  Z)?<Ae  o/  Marlborough  v.  Go- 
dolphin,  2  Vcs.,  61.  Earl  of  Bath  v.  Shcrwin,  10  Mod.,  1.  3  Black.  Com., 
431,  432.  7  Dana's  Abridg.,  ch.  225,  ar^  5,  §  10,  ar^  6,  §  1.  £as«  /n- 
rfm  Company  v.  Boddam,  9  Fes.,  466.  Eoc  parte  Grecnway,  6  Fes.,  812. 
Evans  V.  Bicknell,  6  Fes.  jR.,  182.  Eaton  College  v.  Beauchamp,  1  Cas.^ 
cA.  121.  Edwards  V.  Freeman,  2  P.  Will.,  447.  Ex  parte  Sanby,  1  ^<A., 
149.  jE«r/  o/  /?a«/i  ^  Montague's  Case,  3  ch.,  cas.  69,  93.  iiar/  of  Dar- 
lington V.  Poultcny,  Cowp.  R.,  267.  Gly?in  v.  Bank  of  England,  2  Ves., 
38,  41.  Grounds  and  Rudim.  of  the  Law,  M.  167,  p.  128,  {edit.  1751.) 
Hansard  v.  Robinson,  7  Bariiw.  6f  Cress.,  90.  Holden  v.  Chambury,  3  P, 
VFt7/.,  255.  Harg.  Law  Tracts,  431.  Hawkins  v.  Day,  Ambler  R.,  160. 
Holt  V.  i/oZ/,  1  Cas.,  c/t.  190.  2  P.  PFt7Z.,  447.  Hardwicke  v.  Mntfe,  1 
>lRsr  R.,  112.  Hasdett  v.  Pa^iZe,  6  JV/aJ.  P.,  4.  Harding  v.  G/ynw,  1 
ylrA.,  469.     Harrison  v.  7^orJ,  North,  1,  cA.,  Cas.,  83.     Hallet  v.  Wylie, 

3  Johns.  R.,  44.  //arc  v.  Groves,  3  ^ns<.,  667.  Halbzapffell  v.  Baker, 
18  Fes.,  115.  Jeremy  on  Eq.  Jurisdiction,  282,307.  3  Wood's  Lecture, 
397.  Johnson  V.  Johnson,  3  Boss.  6f  Pull.,  162,  169.  Jackson  v.  Lever, 
3  /?ro.,  C/i.  Pe/).,  605.  9  Fes.,  246.  7e«A««s  v.  /(:emts,  1  Cas.,  cA.  103. 
A'jno-  V.  Baldwin,  17  JoAns.  /i.,  384.  A'ewp  v.  Pnor,  7  Fes.,  248  fo  250. 
Ludlow  V.  Simond,  2  Caincs'  Cas.  in  Err.,  1.  ie  Roy  v.  Feer/er,  1  Johns. 
Cos.,  417.  Lemnon  v.  N upper,  2  Sch.  c^  i^e/r.,  684.  Com.  Dig.  Chan., 
4.  >1.  5.  Mitford  PL  Jiq.,  127,  128,  by  Jeremy.  Mi/ford  PL  Eq.,  29,  54. 
123,  124.  Mossapv.  Eaden,  16  Fes.,  430,  434.  Moorew.  Moore, 2  Ves. 
600.     May  v.  Bennett,  1  Pu.vs.  /i.,  370.     iVo«A  v.  Cooper,  2  Stra.  R.,  763 


ACTS  OF  LEGISLATURES  IN  SEVERAL  STATES.  27 

Mortimer  v.  Copper,  1  Bro.  Ch.  R.,  156.  Marine  Ins.  Co.  v.  Hodgeson,! 
Crunch,  336.  Melthorp  v.  Hield,  1  Cas.,  ch.  135.  iVoc/  v.  Robinson,  1 
Ferm.,  90.  Orr  v.  Karnes,  2  Fe.?.,  194.  On?oni'  v.  Tyrcr,  1  P.  Will,  343. 
2  Fer?n.,  751.  Prec,  ch.  459.  Po^;  v.  Kimherly,  9  Johns.  Rep.,  470. 
Pierson  v.  Hutchinson,  2  Campb.,  211.  6  ^^p.,  126.  Poo/e  v.  iJay,  1  P. 
Will.,  355.  Paradine  v.  Jane,  Aleyen.  R.,  27.  Pym  v.  Blackburn,  3  Fe.y., 
34,  38.  Penny  v.  Martin,  4  Johns.  R.,  596.  Pierson  v.  Garnett,  2  Brown 
Ch.  R,,  38,  226.  PoweZ  v.  Po«;e^,  Prec.  Ch.,  278.  PteJ  v.  Brokman,  5 
T.  P.,  151.  Riddle  V.  Mandeville,  5  Crunch,  330.  Rex  v.  Arundell,  Hob. 
R.,  109.  Stoward  v.  Bridger,  2  Ferm.,  516.  Stoker  v.  Robson^  3  Fe.y. 
^  P.,  50.  Smith  V.  Bicknell,  3  Fe.y.  ^  P.,  50,  {note.)  Siigden  on  Pow- 
ers, ch.  6,  5ec.  2,  p.  378,  (3d  et^j^.)  -SmzY/t  v.  ^^A^ow,  1  Chan.  Cas.,  264. 
2  Chance  on  Powers,  chap.  23,  sect.  1,  ar;;.  2,  824,  2825,  2897,  and  2915. 
/Sfory  on  Bailments,  sec.  25,  35,  36.  Seto7i  v.  Slade,  7  Fei'.,  273.  TouZ- 
wiflw  V.  Price,  5  Fe^-.,  238.  ToWy  v.  Nesbitt,  3  P.  P.,  153.  Tersey  v. 
Gorey,  Pnnc/j.  P.,  301.  1  Ves.,  345.  Tollettv.  Tollett,  2  P.  m//.,  489. 
See  Com.  Dig.  Chan.,  3  F.  6,  7,  8.  Po/ziZ.  Eq.,  b.  1,  c^.  4,  ^  25.  "^FAl^ 
/eZcZ  V.  Fossatt,  1  Fe5.,  392,  393.  3  P/ocA.  Coot.,  431.  1  Fonbl.  Eq.,  b. 
1,  ch.  1,  sec.  7.  Walsmly  v.  Child,  1  Fe.?.,  341.  Whitchurch  v.  Golding, 
2  P.  TFiZ/.,  541.  White  v.  iVafi,  1  P.  Will,  61.  IFAjZ^on  v.  Pw^^eZ,  1 
Atk.,  448.  1  ikTai.  Ch.  Pr.,  46.  TFeaZe  v.  Lower,  1  Py.  Abridg.,  266. 
<See  c/,yo,  1  Story^s  Equity  Jurisprudence,  p.  92  io  120. 


ACTS  OF  LEGISLATURES  IN  SEVERAL  STATES. 

The  acts  of  the  legislatures  of  the  several  states  shall  be  authenticated 
by  having  the  seal  of  their  respective  states  affixed  thereto.  The  records 
and  judicial  proceedings  of  the  courts  of  any  state,  shall  be  proved  or 
admitted  in  any  other  court  w^ithin  the  United  states,  by  the  attestation  of 
the  clerk,  and  the  seal  of  the  court  annexed,  if  there  be  a  seal,  together 
with  a  certificate  of  the  judge,  chief  justice,  or  presiding  magistrate,  as 
the  case  may  be,  that  the  same  attestation  is  in  due  form.  And  such  re- 
cords and  judicial  proceedings,  so  authenticated,  shall  have  such  faith 
and  credit  given  to  them  in  every  couirt  within  the  United  States,  as  they 
have  by  law  or  usage,  in  the  courts  of  the  state  from  whence  the  said 
records  are,  or  shall  be  taken.  Act  26th  May,  1790.  — /See  Craig  v. 
Browne,  1  Peter's  C.  C,  352.  Ferguson  v.  Harwood,  7  Cr.,  408.  Drum- 
mond's  Adm'rs.  v.  McGruder,  9  Cr.,  122.  Mills  v.  Duryee,  7  Crunch, 
484.     Hampton  v.  McConnell,  3  Wheaton,  234. 


Al)JOURNMENT  OF  CONGRESS.— WHEN 
AND  HOW  MADE. 

Neither  house,  during  the  session  of  Congress,  shall,  without  the 
consent  of  the  other,  adjourn  for  more  than  three  days,  nor  to  any  other 
place  than  that  in  which  the  two  houses  shall  be  sitting.— Co«.,  art.  1, 
sect.  5. 


28  ADJOURNMENT  OF  SUPREME,  CIRCUIT  AND   DISTRICT  COURTS. 

ADJOURNMENT  OF  SUPREME,  CIRCUIT  AND  DISTRICT 
COURTS  OF  THE  UNITED  STATES. 

If,  at  any  session  of  the  Supreme  Court,  four  justices  thereof  shall 
not  attend  on  the  day  appointed  for  holding  said  session,  such  justice  or 
justices,  as  may  attend,  shall  have  authority  to  adjourn  said  court  from  day 
to  day,  for  twenty  days  after  the  time  appointed  for  the  commencement  of 
said  session,  unless  four  justices  shall  sooner  attend  ;  and  the  business  of 
said  court  shall  not,  in  such  case,  be  continued  over  to  the  next  stated 
session  thereof,  until  the  expiration  of  said  twenty  days,  instead  of  the  ten 
days  now  limited  by  law. — Act  2lst  January,  1829,  sec.  1.  If  it  shall  so 
happen,  during  any  term  of  the  said  Supreme  Court,  after  four  of  the  jud- 
ges shall  have  assembled,  that,  on  any  day,  less  than  the  number  of  four 
shall  assemble,  the  judge  or  judges  so  assembling,  shall  have  authority  to 
adjourn  said  court  from  day  to  day,  until  a  quorum  shall  attend,  and,  when 
expedient  and  proper,  may  adjourn  the  same  without  day. — Ibid,  sec.  2. 

But  any  one  or  more  of  the  justices  attending,  may  make  all  neces- 
sary orders,  touching  any  suit,  process  or  proceedings  returned  to  the  court, 
or  depending  therein,  preparatory  to  the  hearing,  trial,  or  decision  thereof. 
—  Act  April  29th,  1802,  sec.  1. 

Whenever,  in  the  opinion  of  the  chief  justice,  or  in  case  of  his  death, 
or  inability  of  the  senior  associate  judge  of  the  Supreme  Court,  a  conta- 
gious sickness  shall  render  it  hazardous  to  hold  the  next  stated  session  at 
the  seat  of  government,  he  may  issue  his  order  to  the  marshall,  and  have 
the  court  adjourned  to  some  other  place  in  that,  or  an  adjoining  district ; 
and  the  district  judges  shall  respectively,  under  the  same  circumstances, 
have  power,  by  the  same  means,  to  direct  adjournments  of  the  district  and 
circuit  courts  within  their  several  districts,  to  some  convenient  place  within 
the  same,  respectively.  — .4c<  of  February  2\th,  1799,  sec.  7. 

The  circuit  court  may  be  adjourned  from  day  to  day,  by  any  one  of 
its  judges,  or  if  none  are  present,  by  the  marshall  of  the  district,  until  a 
quorum  be  convened.— >lcf  of  September  2Ath,  1789,  sec.  6.  And  if  no 
Justice  of  the  supreme  court  attend  within  four  days  after  the  time  ap- 
pointed by  law  for  the  commencement  of  the  session,  the  court  may  be 
adjourned  to  the  next  stated  term,  by  the  judge  of  the  district,  or  in  case 
of  his  absence,  by  the  marshall.  — Ac^  of  Maj/  19 th,  1794. 

A  district  court,  in  case  of  the  inability  of  the  judge  to  attend  at  the 
commencement  of  a  session,  may,  by  virtue  of  a  written  order,  from  the 
judge,  directed  to  the  marshall  of  the  district,  be  adjourned  by  such  mar- 
shall, to  such  day  antecedent  to  the  next  stated  session  of  the  court,  as  in 
the  said  order  shall  be  appointed.  — ^cf  of  Sept.  24th,  1789,  sec.  6. 

In  case  of  the  inability  of  such  judge  to  attend  on  the  dai^  appointed 
for  holding  a  special  or  adjourned  court,  such  court  may,  by  such  order, 
be  adjourned  by  the  marshall,  to  the  next  staled  term,  or  to  such  day  prior 
thereto,  as  in  such  order  shall  be  appointed. — Act  of2Gth  March,  1804. 

In  case  of  the  death  of  the  district  judge,  and  the  vacancy  not  being 
supplied,  all  process,  pleadings,  and  proceedings,  of  what  nature  soever, 
pending  btfore  the  district  court,  shall  be  continued,  of  course,  until  the 
next  stated  session  after  the  appointment  and  acceptance  of  the  office  by 
his  successors. — Act  of  2ith  September,  1789,  sec.  6. 


AI.IF.M. 


ALIEN. 

Whenever  there  shall  be  a  war  declared  between  the  United  States 
and  any  foreign  nation  or  government,  or  actual  or  threatened  invasion 
against  the  territory  of  the  United  States  by  any  foreign  nation  or  gov- 
ernment, and  the  President  of  the  United  States  makes  public  proclama- 
tion to  that  effect,  all  natives,  citizens,  denizens,  or  subjects,  of  the  hostile 
nation  or  government,  being  males  of  the  age  of  fourteen  years  and  up- 
wards, who  shall  be  within  the  United  States,  and  not  actually  natural- 
ized, may  be  apprehended,  restrained,  secured,  and  removed,  as  alien 
enemies,  considerable  discretionary  power  in  such  case  is  entrusted  to 
the  President.     See  the  Act,  July  6th,  1789,  sec.  1.     Act,  July  6ih,  1812. 

After  proclamation  so  made,  the  several  courts  of  the  United  States, 
and  of  each  state,  having  criminal  jurisdiction,  and  the  several  judges  and 
justices  of  the  courts  of  the  United  States,  may  upon  complaint,  against 
any  alien  enemies,  resident,  and  at  large,  within  such  jurisdiction  or  dis- 
trict, to  the  danger  of  the  public  peace  or  safety,  and  contrary  to  the  tenor 
of  such  proclamation,  or  other  regulations  which  the  president  may  es- 
tablish in  the  premises,  cause  such  alien  to  be  duly  apprehended,  &c. 
See  Act,  July  6th,  1798,  sec.  2.  The  same  act  authorizes  the  marshall 
of  the  district  in  which  any  alien  enemy  shall  be  so  apprehended,  to  exe- 
cute by  himself  or  ^his  deputy,  or  other  discreet  person  or  persons  to  be 
employed  by  him,  the  orders  of  the  President,  court,  judge  or  justice 
aforesaid,  in  relation  to  the  removal,  &c.,  of  such  alien  enemy.  But  a 
citizen  of  the  United  States,  by  becoming  a  citizen  of  another  country, 
does  not  thereby  cease  to  be  a  citizen  of  the  United  States,  nor  is  he 
absolved  from  his  original  allegiance. — Talbot  v.  Jansen,  3  Dall.,  133. 
Sautissima  Trinidad,  7  Wheaton,  548.  See  U.  States  v.  Williams,  4 
Halls.  L.  Journal,  451.  United  States  v.  Gillies,  1  Peter,  161.  He  may 
acquire  in  a  foreign  country  the  commercial  privileges  attached  to  his 
domicil,  and  be  exempted  from  the  operation  of  commercial  acts  embra- 
cing only  persons  resident  in  the  United  States  or  under  its  protection. — 
Murray  v.  Charming  Betsay,  2  Crunch,  120. 

Citizens  of  the  United  States  have  a  right  to  expatriate  themselves 
in  time  of  war  as  well  as  of  peace,  until  retrained  by  congress.  Such 
right  is  subject  to  the  control  of  the  legislature,  and  to  render  the 
exercise  of  it  valid,  there  must  be  an  entire  departure  from  the  United 
States  for  a  purpose  which  is  not  illegal,  nor  in  fraud  of  the  duties 
at  home  of  the  emigrant. — Talbot  v.  Janson,  3  Dall.,  133.  Santissima 
Trinidad,  7  Wheaton,  548.  See  United  States  v.  Williams,  4  Halls.  L. 
Journal,  461.      United  States  v.  Gillies,  1  Peter,  161. 

1.  Can  an   alien   enemy  sustain  a  suit   in    the    courts   of  the    United 
States  ? 

Not  if  the  alienage  be  properly  pleaded.  — il/wwi/orc/  v.  Mumford,  1 
Gall.,  366.  But  if  an  alien  plaintiff  become  an  enemy,  after  obtaining 
judgment  in  the  circuit  court,  the  supreme  court,  may,  on  a  writ  of  error, 
affirm  the  judgment.  — Oujcn^  x.  Hanney,  9   Cranch,   180.     The  property 


30  AMBASSADORS. 

of  alien  enemies  is  liable  to  confiscation, _;ure  belli,  and  their  civil  capacity 
l(j  sue  is  suspended.  — F(//r/ax  v.  Hunter,!  Cr.,  603.  But  title  acquired 
by  an  alien  enemy  is  not  divested  until  ofBce  found. —  Craig  ei  al.  v. 
Iladfurd,  3  \Vh.,  594.  When  a  person  dies, leaving  issue,  who  are  aliens, 
they  do  not  lake  as  his  heirs  at  law,  but  his  estate  descends  to  the  next 
of  kin,  who  has  inheritable  blood,  as  if  such  alien  issue  did  not  exist. — 
Or  V.  Hadson  et  nx,  4  Wheaton,  453.  An  alien  may  take  an  estate  in 
lands  by  the  act  of  the  parties  ;  but  he  cannot  take  by  act  of  the  law,  as 
by  descent.  —  Or  v.  Hodgson  ct  ux,  4  Wheaton,  454. 

'I'he  treaties  of  1783  and  1791,  only  provide  for  titles  existing  at  the 
time  those  treaties  were  made,  and  not  to  titles  subsequently  acquired. — 
Blight's  less.  V.  Rochester,  7  Wheaton,  535.  Consequently  British  sub- 
jects born  before  the  revolution,  are  equally  incapable,  with  those  born 
after,  of  inheriting  or  transmitting  the  inheritance  of  lands  in  the  United 
States.  The  title  of  heirs  of  an  alien  and  a  British  subject,  who  came 
into  the  United  States  subsequently  to  the  treaty  of  1783,  and  before  the 
signature  of  the  treaty  of  1794  died,  seized  of  lands,  is  not  protected  by 
those  treaties.  —  Ibid. 

The  treaty  of  1778,  between  the  United  States  and  France,  allowed 
the  citizens  of  either  country  to  hold  lands  in  the  other.—  Chirac  v.  Chirac, 
2  Wheaton,  259.  269. 


AMBAS  SADORS. 

The  President  shall  have  power,  by  and  with  the  advice  and  consent 
of  the  Senate,  to  appoint  ambassadors  and  other  public  ministers  and  con- 
suls.—  Con.,  Art.  2,  sec.  2,  ch.  2. 

The  President  shall  not  allow  to  any  minister  plenipotentiary,  a 
greater  sum,  than  at  the  rale  of  nine  thousand  dollars  per  annum,  as  a 
compensation  for  all  his  personal  services  and  expenses,  nor  to  any  charge 
des  affairs,  a  greater  sum  than  at  the  rate  of  four  thousand  live  hundred 
dallars  per  annum,  as  a  comjjensalion  for  all  his  personal  services  and 
expenses  ;  nor  to  the  secretary  of  any  legation  or  embassy,  to  any  foreign 
country,  or  secretary  of  any  foreign  minister  plenipotentiary,  a  greater  sum 
than  at  the  rate  of  two  thousand  dollars  per  annum,  as  a  compensation  for 
all  his  personal  services  and  expenses.  The  President  may  allow  to  a 
minister  plenipotentiary,  or  charge  des  affairs,  on  going  from  the  United 
Slates  to  any  foreign  country,  an  outfit,  which  shall  in  no  case  exceed 
one  years  full  salary.  But  no  consul  shall  be  allowed  an  outfit  in  any  case 
whatever.     Act  of  May,  Isl,  1810,  sec.  1. 

But  nothing  herein  contained  shall  be  construed  to  authorize  any  ap- 
pointment of  a  secretary  to  any  charge  des  affairs,  or  to  any  consul  resi- 
ding on  the  Barbary  coast,  or  to  any  claim  against  the  United  States,  for 
expenses  incident  to  the  same.  —  Ibid,  sec.  2. 

By  Act  of  Congress,  April  30,  1790,  sec.  25,  ambassadors  or  other 
public  ministers  of  any  foreign  prince,  and  their  domestics,  are  privileged 
from  arrest  in  all  civil  cases,  whatever,  their  chattels  cannot  be  destrained, 
seized  or  attached.  Any  person  who  shall  sue  forth  or  prosecute  any 
writ  or  process  on  such  person,  and  all  attorneys  and  solicitors  prosecuting 


ARREST.  31 

or  soliciting  in  such  case,  and  all  officers  executing  any  such  writ  or  pro- 
cess, being  thereof  convicted,  shall  be  deemed  violators  of  the  laws  of 
nations,  and  disturbers  of  the  public  repose,  and  imprisoned  not  exceeding 
three  years,  and  fined  at  the  discretion  of  the  court  :  Provided  neverthe- 
less, That  no  citizen  or  inhabitant  of  the  United  States,  who  shall  have 
contracted  debts  prior  to  his  entering  into  the  service  of  any  ambassador 
or  other  public  minister,  which  debt  shall  be  still  due  and  unpaid,  shall 
have,  take,  or  receive  any  benefit  of  this  act,  nor  shall  any  person  be  pro- 
ceeded against  by  virtue  of  this  act,  for  having  arrested  or  sued  any  other 
domestic  servant  of  any  ambassador  or  other  public  minister,  unless  the 
name  of  such  servant  be  first  registered  in  the  office  of  the  secretary  of 
state,  and  by  such  secretary  transmitted  to  the  marshall  of  the  district  in 
which  Congress  shall  reside,  who  shall,  upon  receipt  thereof,  afiix  the 
same  in  some  public  place  in  his  office,  whereto  all  persons  may  resort 
and  take  copies  without  fee  or  reward.     Act,  April  3d,  1790,  §  26. 

If  any  person  shall  violate  any  safe  conduct  or  passport  duly  obtain- 
ed and  issued  under  the  authority  of  the  United  States,  or  shall  assault, 
strike,  wound,  imprison,  or  in  any  other  manner  infract  the  law  of  nations, 
by  offering  violence  to  the  person  of  an  ambassador  or  other  minister, 
such  person,  so  offending,  on  conviction,  shall  be  imprisoned,  not  exceed- 
ing three  years,  and  fined  at  the  discretion  of  the  court. — Act,  April  30th, 
1790,  sec.  27. 

Ambassadors  and  other  foreign  ministers  retain  their  domicil  in  the 
country  which  they  represent  and  to  which  they  belong.  But  a  difl'erent 
rule  generally  applies  to  consuls,  and  to  other  commercial  agents  who  are 
presumed  to  remain  in  a  country  for  purposes  of  trade,  and  who  therefore 
acquire  a  domicil  where  they  reside. —  Vattel,  b.  1,  ch.  19,  ^  217.  The 
Indian  Chief,  3  Rob.,  13.  27.      The  Josephine,  4  Rob.,  26. 


ARREST. 

SHERIFF'S  AUTHORITY  FOR  BREAKING  OPEN  DOORS  IN 

ORDER  TO  MAKE  AN  ARREST;  AND  WHAT  WILL 

CONSTITUTE  AN  ARREST. 

1.  Will  the  law  allow  an  officer  to  break  open  the  outer  door  of  a  house 
in  order  to  arrest  the  owner  on  a  civil  process  1 

It  will  not  ;  but  if  he  enter  the  outer  door  peaceably,  he  may  then 
break  open  the  inner  door,  though  it  be  the  apartment  of  a  lodger — if  the 
owner  or  himself  occupies  a  part  of  the  house.  But  to  justify  breaking 
open  an  inner  door,  belonging  to  a  lodger,  admittance  must  be  first  de- 
manded, unless  defendant  is  in  the  room.  And  the  breaking  open  an 
inner  door  of  a  stranger,  cannot  be  justified  on  a  suspicion  that  defendant 
is  in  ihe  room.  There  can  be  no  doubt  but  a  dwelling  house  is  a  pro- 
tection from  arrest  in  civil  process,  to  the  occupant,  his  children  and  do- 
mestic servants,  and  permanent  lodgers  and  boarders.  For  "  every  man's 
house  is  looked  upon  by  the  law  to  be  his  castle  of  defence  and  asylum, 


32  ARREST. 

wherein  he  should  suffer  no  violence." — 3  Blachstone's  Com.,  288.  Cowp., 
1.  2  Moore,  207.  8  Taunt.,  250.  S.  C.  Ousted  v.  Shed,  13  Mass., 
520.  3  2)'.  cj- P.,  222.  4  Tawn^.,  619.  5  Tawn^.,  765.  6  £J.,  246. 
The  State  v.  Thackmn  Sf  Mason,  1  J5ay'5  »S.  C.  Rep.,  358.  But  it  is  the 
defendant's  own  dwelling  which  by  law  is  said  to  be  his  castle,  for  if  he 
be  in  the  house  of  another,  the  sheriff  may  break  and  enter  it  to  effect  his 
purpose,  but  he  ought  to  be  very  certain  that  the  defendant  be,  at  the  time 
of  such  forcible  entry,  in  the  house. — Johnson  v.  Leigh,  6  Taunt.,  246. 
But  if  the  sheriff  has  once  arrested  the  defendant  and  he  takes  refuge  in 
his  dwelling  house,  the  oflicer  may  break  into  the  house  in  pursuit  of 
him,  but  before  so  doing  he  should  demand  admittance  and  be  refused. -~ 
Ot/stedv.  Shea,  13  Mass.,  520.  Allen  v.  Martin,  10  Wend.,  300.  So, 
bail  may  break  open  an  outer  door  after  demand  of  admittance  and  re- 
fusal, to  take  the  principal.  — 8  Pick.,  138.  7  Johns.,  145.  And  they 
may  justify  entering  the  house  of  a  stranger,  (the  outer  door  being  open,) 
to  take  the  defendant  though  he  be  not  in  the  house. — 2  He?i.  Bla.,  120. 
And  bail  may  command  assistance  from  the  sheriff  and  his  oflicers  to  take 
the  principal. — 8  Pick.,  138.  The  principle  "  that  every  man's  house  is 
looked  upon  by  the  law  to  be  his  castle  of  defence  and  asylum,  wherein 
he  should  suffer  no  violence,"  is  carried  so  far  in  the  civil  law,  that  for 
the  most  part  not  so  much  as  a  common  citation  or  summons,  much  less 
an  arrest  can  be  executed  upon  a  man  within  his  own  walls.  —  Ff.,  2.  4. 
18.  21.  But  in  execution  of  criminal  process,  an  officer  may  break  open 
the  doors  of  a  house  in  the  night  as  well  as  in  the  day-time  after  demand 
of  admittance  and  refusal.  There  is  some  contradiction  in  the  ancient 
authorities  as  to  the  point,  whether  a  sheriff  can  break  the  doors  of  a 
dwelling  house  loserve  a  process  for  a  breach  of  the  peace.  But  the 
principle  seems  never  to  have  been  doubted,  that  where  a  public  offence 
has  been  actually  committed,  any  proceedings  in  the  name  of  the  public 
for  its  punishment,  shall  not  be  delayed  by  the  privilege  "  that  every  man's 
house  is  his  castle.  Some  of  the  cases  supposed  to  be  exceptions,  are 
those  where  no  crime  has  been  perpetrated  ;  and  the  doctrine  is  occa- 
sionally laid  down  as  to  felonies  alone,  without  particularizing  breaches 
of  the  peace.  But  it  is  well  explained  by  East,  C.  L.,  324,  c.  5,  i}  88, 
that  this  privilege  extends  no  further,  than  against  arrests  upon  process  in 
civil  suits  for  when  a  felony  has  been  committed  or  dangerous  wounds 
given,  or  even  where  a  minister  of  justice  comes  armed  with  a  process 
founded  upon  a  breach  of  the  peace,  the  party's  own  house  is  no  sanctuary 
for  him,  but  the  doors  may  be  forced  after  the  notification,  demand,  and 
refusal.  In  1  East.  C.  L.  324,  ch.  5,  s.  88,  it  is  well  observed  that  such 
process  may  be  executed  at  night  as  well  as  by  day  ;  and  therefore  killing 
t|he  sheriff  or  other  officer,  on  pretence  of  his  corning  at  an  unreasonable 
hour  would  be  murder.  — 77<e  State  v.  Stnith,  1  New  I  lamp.  Rep.,  346. 
Wallace,  R.  23, 

Private  individuals  are  enjoined  by  law  to  arrest  an  offender  when 
present  at  the  time  a  felony  is  committed  or  dangerous  wound  given. — 
11  Johns.  R.,  486.  And  vide,  Hawk.,  b.  1,  ch.  12,  ^  1  ;  Ch.  13,  ^  7,  8. 
4  HI.  Com.  Big.  Imprisonment,  (//.  4.)  Bac.  Ahr.  1  Chitty^s  Cr.  Law,  11 
to  71.      Russ.  on  Cr.  Index,  h.  t. 

With  regard  to  what  will  amount  to  an  arrest,  Mr.  Justice  Black- 


>•  ARRKST.  33 

Stone  remarks,  book  3,  p.  288,  "  that  an  urresl  nuisl  be  by  corporal  seizing 
or  U)uching  the  delendant's  body."  But  this  does  not  seem  to  be  abso- 
lutely necessary  for  if  an  officer  come  into  a  room,  and  tell  the  defendant 
he  arrests  him,  and  lock  the  door  it  is  sufficient. — Bull.  N.  P.,  82.  C 
T.  See  C.  T.  Hat/w.,  301.  2  New  R.,  211.  Or  if  the  officer  having 
the  authority  be  near  and  act  in  the  arrest,  without  being  the  person  who 
actually  arrests  the  defendant.  —  Cowp.,  65.  Or  if  the  parly  be  within  the 
power  of  the  officer  and  submit  to  the  arrest.  —  Gold  v.  Bissel,  1  Wend., 
215.  Doubted,  2  N.  Ilamp.,  318.  Huntitigton  v.  Btaisdcll,  see  also  Hun- 
tingdon V.  Schults,  Harper,  A53.      United  States  v.  Benner,  1  Bald.,  239. 

When  one  not  generally  known  as  an  officer,  makes  an  arrest,  he 
must  show  his  authority,  if  demanded,  or  he  may  be  lawfully  resisted. 
But  the  right  to  demand  of  one  not  generally  known  as  an  officer,  to  pro- 
duce his  warrant,  is  when  the  party  submits  himself  to  the  arrest,  not 
where  he  immediately  resists.  —  Commonwealth  v.  Field,  13  Mass.,  321. 
State  V.  Curtis,  1  Hayw.,  471.     Arnold  v.  Sleeves,  10  Wend.,  514. 


EXEMPTION  FROM  ARREST,  INCLUDING  PRIVILEGE, 
AND  WHO  MAY  BE  ARRESTED,  SECOND  ARREST 
FOR  THE  SAME  CAUSE  OF  ACTION,  AUTHOR- 
ITY TO  MAKE  AN  ARREST,  &c. 

1.  Are  not   members  of  congress,  and  of  state  legislatures,  privileged 
from  arrest  1 

They  are.  — Gibbs  v.  Mitchell,  2  Bay.,  406.  United  States  v.  Cooper, 
4  Dall.,  341.  King  v.  Coit,  4  Day,  133.  But  a  member  of  congress  is 
only  privileged  from  arrest  while  actually  going  or  returning  from  congress. 
— Lewis  V.  Elmendorf,  2  Johns.  Cos.,  222.  See  also.  Cox  v.  McClenechan, 
3  Dall.,  478.  So,  parties  to  a  suit,  and  their  attornies,  are  for  the  sake 
of  public  justice,  protected  from  arrest,  in  coming  to,  attending  upon,  and 
returning  from  the  courts,  or  as  it  is  usually  termed,  euondo,  7norando,  et 
redeundo.  —  2  Roll.  Abrtdg.,  272.  2  Lit.  Pr.,  369.  ]  Mod.,  66.  S.  C.  1 
Vent.,  11.  Gibb,  C.  P.,  207.  Barnes,  27,  378.  2  Stra.,  986.  Peakes* 
Ev.,  5th  edit.,  198,9.  1  Campb.,  229.  4  Moure,  34.  6  Taunt.,  356.  2 
Marsh,  57.  S.  C.  Hurst's  Case,  4  Dall.,  387.  4  Yeates,  124,  note.  1 
Wash.  C.  C,  186.  McNeil's  Case,  6  Mass.,  245,  264.  Harris  v.  Gran- 
tham, Coxe,  142.  Blight  v.  Fisher,  Peters  C.  C,  41.  Commonwealth  v. 
Ronald,  4  Call.,  97.  Richards  v.  Goodson,  2  Virg.  Cas.,  381.  11  East, 
439.  See  also,  Tidde,  8th  edit.,  192  to  214.  Humphry  v.  Cumming,  5 
Wend.,  90.  9  Johns.,  216.  Webb  v.  Cleveland,  9  Johns.,  266.  2  Caines, 
387.  Sperry  v.  WiUard,  1  Wend.,  32.  Scott  v.  Van  Alstyne,  9  Johns., 
2l6.  But  they  are  not  privileged  from  service  on  them  of  process  where 
only  common  bail  is  required.— Hop A:m5  v.  Coburn,  1    Wend.,  292. 

But  an  attorney,  or  other  officer  of  the  court,  is  never  privileged  from 
arrest,  when   sued  with   another,  though  during  the  actual   sitting  of  the 
court,  and  during  his  attendance  there.  — Gay  v.  Rogers  ^  Winl,  3  Cow., 
362.      Tiffany  v.  Driggs,  13  J.  R.,  252. 
5 


34  ARREST. 

A  debtor's  body  is  not  exempted  from  arrest,  in  one  state,  because  he 
has  been  committed  in  another  state  for  the  same  debt,  and  been  ^liere 
discharged  upon  laluiiu;  the  poor  debtor's  oath.  —  Hubbard  v.  Went  worth.  3 
N.  Hump.,  43.  Woodbridgaw  Wright,  3  Com.,  523.  Peck  v.  Hosier,  14 
Johns.,  34G.  In  Ohio,  by  statute  of  1831,  females  are  not  liable  to  arrest 
on  contracts.— O.  Boyle  v.  Browne,  Wright,  465.  A  judge  is  not  liable  to 
arrest  by  process  issuing  out  of  his  own  court,  but  must  be  proceeded 
against  by  bill.  —  Livingstones  Case,  8  JoJins.,  361. 

An  oflicer  is  bound  to  serve  process,  notwithstanding  a  claim  of  privi- 
lege by  the  defendant.  But  after  the  defendant  is  discharged,  he  may,  if 
then  liable  to  arrest,  be  again  arrested  on  the  same  writ.  —  Sperry  v.  Wil- 
lard,  1  Wend.,  32.  -S.  P.  8  Pick.,  137.  18  Johns.,  52.  Van  Wezel  v. 
/an  Wezel,  1  Edward  Chan.,  113. 

In  England,  it  is  holden,  that  the  servants  in  ordinary  of  the  King  or 
Queen  regent,  though  subject  to  a  capias,  ought  not  be  arrested,  even  upon 
process  of  execution,  without  notice  first  given  to,  and  leave  obtained  from 
the  lord  chamberlain  of  his  majesty's  household.  And  a  servant  of  this 
nature,  is  not  liable  to  be  arrested,  although  the  debt  be  contracted  in  the 
course  of  trade,  which  he  publicly  carries  on.  —  bDurnford  6f  East,  686. 
2  Chitty  Rep  ,  46.  1  Dowl.  Sf  Ryl,  127,  n.  T.  Raym.,  152.  2  Keh.,  3, 
485.  But  see  1  Barn.  <Sc  Cress.,  139.  2  Dowl.  <^  Ryl,  250.  S.  C.  2 
Taunt.,  167.  Peers  of  the  realm,  members  of  parliament,  and  corpora- 
tions, are  privileged  from  arrests. — 3  Blackstone^s  Com.,  289.  Whitclock 
of  Pari,  206,  207.  And  against  them,  the  process  to  enforce  an  appear- 
ance, must  be  by  summons,  and  distress  infinito,  instead  of  capias. — 3 
Blackstone,  280.  But  the  servant  of  a  qucn  consort  or  dowager,  is  not 
privileged  from  arrest ;  and  of  tlie  privileged  to  the  King's  servants  in  or- 
dinary, with  fee,  in  regard  of  their  attendance  on  his  person,  it  has  been 
determined,  that  a  gentleman  of  the  King's  privy  chamber,  or  the  fort  ma- 
jor, or  deputy  governor  of  the  tower  of  London,  is  not  privileged  from  j 
arrest.  — 1  Keh.,  842,  877.  2  Barn.  6f  Aid.,  234.  1  Dowl.  iSf  Ryl.,  79.  j 
2  Cha.  Rep.,  48,  51.  And  see,  6  Barn,  cj-  Rawl.,  139.  2  Doiol.  cj-  Ryl.,  ' 
250.  S.  C.  Clergymen  performing  divine  service,  and  not  merely  staying 
in  the  church  with  a  fraudulent  design,  are,  for  the  time,  privileged  from 
arrests,  by  Slat.  50  Edward  3,  ch.  5,  and  1  Richd.  2,  c.  16  ;  as  likewise 
members  of  convocation,  actually  attending  thereon,  by  Stat.  8  Henry  6, 
chap.  1- 

Witnesses  while  attending  court  are  privileged  from  arrest.  — Pea A:eA' 
Evid.,  5th  edit.,  198,  9.  1  Campb.,  229.  4  Moore,  34.  Huntingdon  v. 
Schultz,  Harper,  452.  Sandfurd  v.  Chase,  5  Cow.,  381.  1  Chitty  Rep., 
679.  3  Burn.  Sf  Aid.,  252.  A  reasonable  time  is  allowed  for  going  and 
returning. — 2  Bla.  Rep.,  113.  2  Marsh.,  57.  Nor  does  the  privilege  from 
arrest,  extend  throughout  the  term  at  which  the  cause  was  marked  for 
trial,  after  he  is  discharyed  from  the  obligation  of  the  subpoena.  — ^SwjyM  v. 
Banks,  4  Dull,  329.  In  McNeil's  Case,  6  Mass.,  264,  it  was  held,  that  a 
witness  who  attends  court,  without  being  summoned,  is  not  privileged 
from  arrest.  — /2o^(?ri-  v.  Bullock,  2  Pennsyl.,  516.  In  England,  the  courts 
have  not  been  nice  in  scanning  this  privilege,  but  have  given  it  a  large  and 
liberal  construction  ;  and  where  the  defendant  was  attending  his  cause  at 
the  sittings,  and  though  it  was  put  otT  early  in  the  day,  stayed  in  court 


ARREST.  35 

until  five  in  the  afternoon,  and  then  went  with  his  attorney  and  witnesses 
to  dine  at  a  tavern,  where  he  was  arrested  during  dinner  ;  the  court  held, 
that  such  a  necessary  refreshment  as  this, ought  not  to  be  looked  upon  as  a 
deviation.  So  as  to  cancel  the  defendant's  pn\'\\ege,redcuTtdo.  —  2Black- 
stone's  Rep.,  113.  So,  where  a  witness  having  attended  a  trial  at  Win- 
chester assizes,  which  was  over  on  Friday,  about  four  in  the  afternoon,  was 
arrested  on  Saturday,  about  seven  in  the  evening,  as  she  was  going  home 
in  a  coach  to  Portsmouth,  the  court  held,  that  she  ought  to  be  discharged, 
her  protection  not  being  expired  ;  and  that  a  little  deviation  or  loitering, 
would  not  alter  it. —  Gilb.  Cos.,  K.  B.,  308.  2  Sir.,  986.  There  is  in- 
deed a  case  in  the  Year  Books — Bro.  Ahr.,  tit.  Privilege  4 — where  a  man 
was  arrested  in  a  town,  which  was  forty  miles  out  of  his  way,  and  yet 
was  allowed  his  privilege  ;  for,  perhaps  it  is  said,  he  went  there  to  buy  a 
horse,  or  other  necessaries  for  his  journey.  But  the  sheriff  not  being 
bound  to  take  notice  of  the  privilege  of  a  witness,  is  not  liable  to  an  action 
of  false  imprisonment  for  arresting  him,  when  privileged,  redeundo,  from 
attending  the  court.— 2  Black.  Rep.,  1190.  And  where  an  attorney  had 
been  attending  a  cause  at  the  Middlesex  sittings,  in  term,  which  was  put 
off  to  the  adjournment  day,  after  which  he  went  with  his  witness  to  a  coffee 
house,  where  he  was  arrested,  three  hours  after  the  rising  of  the  court,  on 
an  attachment  for  non-payment  of  money  ;  the  court  held,  that  an  attorney 
was  not  to  be  allowed  so  long  a  time  to  speak  to  his  witness,  on  such  an 
occasion,  before  he  went  home,  and  that  he  was  properly  taken.  —  Rex  v. 
Priddle,  M.,  27,  Geo.  3,  K.  B.  See  1  Sviyth  R.,  355.  In  the  same  case, 
the  attorney  having  been  discharged  on  payment  of  the  money,  for  which 
the  attachment  issued,  was  taken  in  execution  at  the  door  of  the  court,  as 
he  was  going  away  ;  and  the  court  held,  that  as  he  was  decided  to  have 
been  in  legal  custody,  he  was  not  entitled  to  any  privilege  redeundo.  The 
privilege  here  spoken  of,  has  been  holden  to  extend  to  all  persons  who 
have  any  relation  to  a  cause  which  calls  for  their  attendance  in  court,  and 
who  attend  in  the  course  of  that  cause,  though  not  compelled  by  process, 
such  as  bail,  &:c. —  Walpole  v.  Alexander,  H.  22  Geo.  3,  K.  B.  1  //.  Bla., 
636.  1  Maule  6f  Selw.,  638.  2  Rose,  23.  And  it  has  been  determined, 
that  a  party  to  a  cause  is  privileged  from  arrest,  for  debt,  during  his  atten- 
dance on  an  arbitration,  under  an  order  of  nisi  prius,  made  a  rule  of  court. 
—2  Blac.  1110.  1  Durnford  <Sf  East,  536.  1  Mavle  6f  Selw.,  638.  3 
East,  89.  3  Barn.  <Sf  Aid.,  252.  1  Chitty  Rpp.,  679.  5.  C.  Id.,  682. 
Or  on  the  execution  of  a  writ  of  enquiry.  —  4  Moore,  34.  So,  the  sum- 
mons of  an  arbitrator,  to  whom  a  cause  has  been  referred  by  order  of  the 
court  of  chancery,  protects  a  party  from  arrest,  under  process  of  the  court 
of  King's  Bench,  whilst  employed  in  bona  jide  oheAience  to  the  summons. 
—  3  Barn.  <Sf  Aid.,  252.  1  Chit.  Rep.,  679.  S.  C.  But  in  the  same  case, 
a  majority  of  the  judges  of  the  court  of  Exchequer,  were  of  a  different 
opinion. — 1  Chit.  Rep.,  682.     7  Price,  699. 

But  if  a  party  attending  court,  submit  to  the  arrest,  without  attempting 
to  defeat  or  prevent  it,  he  cannot  afterwards  object  to  the  imprisonment  as 
unlawful. —  Browne  V.  Getchell,  11  Mass.,  11.  S.  P.  Geyer  v.  Irvin,  A 
Dull.,  107.  Service  of  process,  that  does  not  require  bail,  is  not  a  breach 
of  the  privilege  of  a  witness  attending  court. — Le  Grand  v.  Bedinger,  4 
Monroe,  540.     The  privilege  of  a  suiter  does  not  hold  when  he  has  been 


36  ARREST. 

surrendered  by  his  bail  in  another  cause,  and  is  in  actual  custody  at  the 
lime  of  arrest. — Davis  v.  Cummins,  3  YeaLes,  387.  A  feme  covert  is  privi- 
leged from  arrest.— 1  T.  R.,  486.  2  H.  B.,  17.  But  if  she  obtain  credit, 
pretending  to  be  single,  she  may  be  arrested.  — 1  A''.  R.,  54.  And  see,  1 
Bing.,  344.  2  Marsh.,  40.  7  Taunt.,  55  Tidd,  8,  ed.  197.  Though, 
if  a  foreigner,  and  her  husband  be  abroad,  she  is  liable  for  her  debts, 
though  neither  separated  by  deed,  nor  having  a  separate  maintenance. — 
2  N.  R  ,  380.  But  if  plaintiff  knew  her  to  be  married,  she  will  be  dis- 
charged—6  T.  Rep.,  451.  1  East,  17,  ?i.  7  East,  582.  And  in  such 
case,  plaintiff  will  be  ruled  to  pay  costs  of  motion.  — 3  Taunt.,  307.  But 
if  she  cohabit  with  another  man,  and  trade  on  her  own  account,  she  will 
not  be  discharged. —  1  B.  4"  P-^  8-  If  she,  by  mistake,  represent  her  hus- 
band to  be  dead,  she  will  be  discharged.  — 1  East,  16. 

In  Maine,  a  debtor  cannot  lawfully  be  arrested  <jn  mesne  process,  in 
any  case  where  after  judgment  his  body  is  not  liable  to  be  taken  in  execu- 
tion.—  Greene  v.  Morse,  5  Greene,  291.  But  in  South  Carolina,  the  act  of 
1824,  exempting  females  from  arrest  on  a  ca  sa,  does  not  exempt  them 
from  arrest  on  a  bail  wiil.  —  Dcsprang  v.  Davis,  3  McCord,  16. 

2.  If  a  contract  be  entered  into  in  a  state,  where  imprisonment  for  debt 
is  not  allowed,  and  the  debtor  before  payment  removes  to  a  state  which 
allows  imprisonment  for  debt,  can  the  debtor  be  held  to  bail  in  the  state 
to  which  he  removes  ? 

He  can.  The  laws  of  the  country  where  the  contract  was  made,  can 
only  have  reference  to  the  nature  of  the  contract,  not  to  the  mode  of  en- 
forcing it.  The  lex  loci  applies  only  to  the  interpretation  of  the  con- 
tracts :  the  remedy  on  them  must  be  prosecuted  according  to  the  laws  of 
the  country  in  which  the  action  is  brought.  Whoever  comes  voluntarily 
into  a  country  subjects  himself  to  all  the  laws  of  that  country  ;  and 
tViprnin  to  all  the  remedies  directed  by  those  laws  on  his  particular  en- 
gctgcinents,  it  is  of  no  consequence  whether  the  contract  authorizes  an 
arrest  or  imprisonment  in  a  suit  upon  it  in  any  foreign  country,  whose 
laws  authorize  such  a  mode  of  proceeding  as  a  part  of  the  local  remedy, 
this  principle  seems  now  well  settled  both  in  England  and  America. — 
Smith  V.  Spmalla,  2  Johns.  N.  Y.  /v.,  p.  198.  Nash  v.  Tupper,  1  Caines^ 
Rep.,  402.  Melan  v.  Fitz  James,  1  Boss.  6f  Pull.,  142.  Hinkley  v. 
Morean,  3  Mason  R.,  88.  De  la  Vaga  v.  Viajina,  1  Barn.  6^  Adolph. 
R.,  284.  3  Burge  Comm.  on  Col.  <^'  ^For.  Law,  Pt.  2,  ch.  20,  p.  766  to 
769.  Atumter  v.  Townsend,  4  Conn.  R.,  47.  Woudhridge  v.  Wright,  3 
Ihid,  523.  526.  Smith  v.  llcaly,  4  Ibid,  49.  Implry  v.  Elfesson,  2 
East  R.,  453.  Peck  v.  Ilozier,  14  Johns.  R.,  346.  Robinson  v.  Bland, 
2  Burr.,  1089.  Hinkley  v.  Morean,  3  Mason  R.,  88.  Smith  v.  Spinollo, 
2  John.  R.,  198.  Whitmore  v.  Adams,  2  Cowen's  Rep.,  626.  Willing 
V.  Consequd,  1  Peter^s  Cir.  B.,  317.  Courtois  v.  Carpenter,  1  Wash.  C. 
R.,  376.  Bird  v.  Carritat,  2  Johns.  R.,  345.  Wyman  v.  Southard,  10 
Wheat.  R.,  1.  Sec  Henry  on  Foreign  Ijqw,  p.  81  to  86.  Lord  Tenter- 
den,  the  case  of  Dc  la  Vega  v.  Vianna,  (one  of  the  foregoing  cases,)  said, 
"  A  person  sueing  in  this  country,  must  take  the  law  as  he  finds  it.  He 
cannot  by  virtue  of  any  regulation  in  his  own  country  enjoy  greater  ad- 
vantages than  other  suitors  here.     And  he  ought  not,  therefore,  to  be  de- 


ARREST.  37 

prived  of  any  superior  advantage  whicli  tlie  law  uf  this  country  may  con- 
I'er.  He  is  to  have  the  same  rights  which  all  the  subjects  of  this  kiupdoin 
are  entitled  to."  And  the  same  doctrine  has  been  solerurdy  promulgated 
by  the  House  of  Lords  in  the  recent  case  of  Dorm.  v.  Lipmann,  5  Clarke 
<Sf  Finnell,  R.,  1.  13.  14.  15.  Lord  Brougham,  in  this  case,  in  delivering 
his  judgment  made  some  striking  remarks  on  this  subject.  "  The  law 
on  this  point  is  well  settled  in  this  country,  where  the  distinction  is  pro- 
perly taken,  that  whatever  relates  to  the  remedy  to  be  enforced,  must  be 
determined  by  the  lex  fori,  the  law  of  the  country  to  the  tribunals  of 
which  the  appeal  is  made."  This  rule  is  clearly  laid  down  in  The  Bri- 
tish Linen  Co.  v.  Drummond,  10  Barn.  6f  Cress.,  903.  Da  le  Vaga  v. 
Vienna,  1  Barn.  Sf  Adolf.,  284.     And  in  Haber  v.  Steinier;  2  Scott,  304. 

1  Hodge,  20G.  2  Bmg.  N.  C,  202.  2  Doiol.  Prac.  Cos.,  781.  And  4 
Moore  (Sj-  Scott,  328  :  though  the  reverse  had  previously  been  recognized 
in  Williams  v.  Jones,  13  East,  439. 

3.   Will  a  discharge  under  the  insolvent  law  of  one  state   protect   the 
defendant  from  arrest  on  the  same  cause  of  action  in  another  state  I 

It  will  not.— Wood  et  al.  v,  Malin,  Nov.  Term,  1828.  5  Halst  N". 
J.  Rep.,  p.  298. 

The  defendant  was  arrested  on  a  contract  made  in  New  York,  where 
both  the  plaintiff  and  defendant  resided,  and  where  lie  took  the  benefit  of 
the  insolvent  laws  of  that  state. 

Motion  to  discharge  him  on  common  bail.  Per  Cur.  Ewing,  Ch.  J. 
Held,  that  he  was  not  entitled  to  be  discharged.  That  a  process  to  en- 
force a  demand  is  to  be  determined,  not  by  the  law  of  the  state  where 
the  demand  originally  accrued,  but  by  the  law  of  the  state  where  the  pro- 
cess is  used  ;  that  the  distinction  between  the  obligation  of  the  contract, 
and  the  remedy  given  by  the  legislature  to  enforce  that  obligation,  has 
been  taken  at  the  bar  and  exists  in  the  nature  of  things,  and  has  been 
adopted  by  our  courts.  This  decision  is  in  perfect  accordance  with  the 
following  English  decisions.  —  Duplein  v.  De  Rover,  2  Verm.,  540. 
Mellen  v.  Fits  James,  1  B.  6f  P.,  138.  Imlay'\.  Eleffsen,  2  East,  453. 
Robinson  v.  Bland,  2  Burr.,  1084.  Halman  v.  Johnson,  Cowp.,  343.  Maul 
V.  Murray,  7  T.  R.,  407.  And  the  following  American  cases  are  to  the 
same  point.  —  Hinkley  v.  Marean,  3  Mason  Rep.,  88.     Pearsall  v.  Dwight, 

2  Mass.  Rep.,  84.  Blanchard  v.  Russell,  13  Ibid,  4.  Woodbridge  v. 
Wright,  3  Conn.  Rep.,  523.  Atwaler  v.  Townsend,  4  Ibid,  47.  Smith 
V.  Healy,  4  Ibid,  49.  Ogden  v.  Saunders,  12  Wheaton,  285.  Sturges  v. 
Crowninshield,  4  Wheat.  U.  S.  R.,  197.  Smith  v.  Spinola,  2  Johns-  N. 
Y.Rep.,\9S.  White  X.  Canfield,!  Johns.  119.  Sicard  v.  Whale,  11 
Johns.  B.,  194.  Peck  v.  Hazier,  14  Ibid,  346.  Whiltemore  v.  Adams,  2 
Cowen's  Rep.,  626.  But  in  New  Jersey  at  the  February  term  of  1822,  in 
the  case  of  Lambert  v.  Moon,  1  Halst.  N.  J.  Rep-,  131,  the  court  held 
that  where  the  defendant  had  been  held  to  bail  in  another  state,  and  a 
judgment  recovered  against  him,  he  could  not  be  arrested  in  New  Jersey, 
in  an  action  upon  that  judgment,  and  cited  Tidd's  Practice,  186.  Say^s 
Rep.,  160.     7  T.  R.,  470.     And  14  Johns.  Rep.,  346. 

It  is  a  general  rule  in  the  courts  of  Great  Britain,  that  no  person  can 


38  ARREST. 

be  arrested  twii-e  for  ilie  same  cause  of  action.  The  maxim  nemo  debit 
bis  vexari  pro  cadnn  prevails  there.  But  to  this  rule,  there  are  several 
e.Kceptious,  it  is  iiiieiided  to  aHord  relief  only  where  the  person  arrested 
has  been  put  to  inconvenience  in  giving  bail.  —  Davidson  v.  Clayworth,  1 
Chilly's  R.,  275.  Bishop  v.  Powel,  6  T.  R.,  616.  When  the  defendant 
is  discharged  out  of  custody  the  first  time  for  some  act,  over  which  the 
plaintiff  has  no  control,  the  party  may  again  be  arrested. — Honsin  v.  Bar- 
row, 6  T.  R.,  218.  So,  also  the  defendant  may  be  again  arrested  where 
the  proceedings  have  been  suspended  by  his  act.—  Woodmesten  v.  Scott, 
1  A''.  R.,  13.  So,  where  the  defendant  has  been  held  to  bail  in  a  foreign 
country,  he  may  be  arrested  in  Great  Britain  for  the  same  cause  of  action. 

—  Maule  et  aU  v.  Murray  at  al.,  7  T.  R.,  470.  So,  also,  the  court  held 
that  a  foreign  attachment  in  the  mayor's  court  will  not  prevent  a  second 
arrest  in  a  superior  court.  —  TFooJ  et  al.  v.  Thompson,  1  Marshall,  395. 
And  even  where  the  defendant  has  put  in  bail  on  the  attachment.  —  Bromly 
V.  Peck,  5  Taunt.,  852.  And  where  the  defendant  is  arrested  on  two 
different  writs,  in  several  counties,  the  proper  course  is  to  enter  an  exon- 
eruter,  on  one  of  the  bail  pieces.  —  Poivel  v.  Henderson,  1  Chitty's  Rep., 
392.  But  the  court  will  in  general  infer  a  second  arrest  to  be  oppressive 
unless  it  be  shown  that  the  former  suit  was  discontinued  on  the  ground  of 
mistake.  —  Archer  v.  Champneys,  3  Moore,  607.  So,  also  where  the  de- 
fendant is  superseded,  he  cannot  be  held  to  bail  for  the  same  cause  of 
action,  if  the  supersedeas  be  from  the  laches  of  the  plaintiff. — Blandford 
V.  Foote,  Cowp.,  62  ;  and  even  where  the  arrest  is  founded  on  a  new  se- 
curity given  before,  or  subsequent  to,  the  discharge— Daniel  v.  Dodd,  8 
Easf,  334.  Taylor  v.  Wasteneys,  2  Slra.,  1218.  Even  where  the  de- 
fendant is  a  foreigner,  and  the  plaintiff  is  in  danger  of  loosing  his  debt. — 
Imlay  v.  Ellefesen,  3  East,  309.  It  seems  the  defendant  cannot  be  held 
to  bail  for  the  same  cause  of  action  for  which  the  plaintiff  was  non  prossed. 

—  Archer  v.  Champneys,  3  Moore,  607,  but  may  where  the  plaintiff  has 
been  nons\x\\.eA.  —  Kearney  v.  King,  1  Chitty's  R.,  273.  So,  where  part- 
nership was  pleaded  in  abatement,  and  judgment  in  favor  of  the  plea,  the 
eourt  held  the  defendants  might  be  again  arrested  for  the  same  debt. —  <Sa/- 
ishury  v.  Whitehall,  1  Tidd.,  197,  (7  ed.)  Changing  the  form  of  the  ac- 
tion does  not  vary  the  rule  that  the  defendant  shall  not  be  held  to  bail 
twice  for  the  same  cause  of  action. — Imlay  v.  Ellfesen,  3  East,  309. 

On  a  debt  upon  a  judgment  against  husband  and  wife,  if  the  wife 
be  taken  in  execution  and  discharged,  the  husband  is  discharged  also. — 
Kemlde  Sf   Wife  v.  Mulony,  3  New  II.  R.,  376. 

An  arrest  of  a  person  by  a  wrong  name  though  he  be  the  person  in- 
tended is  unlawful,  unless  it  be  shown  that  he  was  known  by  one  name 
as  well  as  the  olhar.  — Mead  v.  Ilawes  et  al.,  7  Coio.  New  York  Reports, 
332.  Griswold  v.  Sedgwick,  6  Cowcn,  456.  The  same  principle  is  re- 
cognized in  2  Camph.,  270  ;  3.  110.     6  T.  R.  234. 

It  is  a  contempt  of  court  to  serve  either  a  summons  or  capias  in  the 
actual  or  constructive  presence  of  the  court.  — Blight  v.  Fisher  et  al.,  1 
Peter's  U.  S.  C.  C.  Rep.,  41.  And  the  court  in  such  case  will  discharge 
the  defendant.  — //arn^  v.  Grantham,  Coxe  N.  J.  Rep.,  142. 

An  elector  after  having  voted  and  retired  to  a  house  in  the  neighbor- 
hood is  protected  from  arrest.     The  defendant  admitted  that  he  had  taken 


ARREST.  39 

the  plaintiff's  body  and  committed  liim  to  prison,  but  justified  imder  a 
regular  writ  of  attachment,  which,  as  an  officer,  he  then  held  against  the 
plaintiff.  The  plaintiff  claimed,  that  he  was  at  that  time  an  elector,  which 
was  known  to  the  defendant  ;  and  that  the  writ  was  served  on  him  on 
the  day  appointed  by  law,  for  the  choice  of  state  officers  while  he  was 
attending  as  an  elector  at  such  meeting.  Verdict  for  the  plaintiff. — 
Swift  V.  Chamberlain,  3  Com.  Rep.,  537. 


ARREST  IN  CRIMINAL  CA.SES-WHO  MAY  BE  ARRESTED. 

But  the  exceptions  from  arrest  of  which  we  hare  been  speaking  are 
applicable  only  to  civil  cases,  and  cease  to  operate  in  cases  of  a  criminal 
nature,  no  sanctuary  will  afford  a  refuge  for  the  criminal,  not  even  the 
church  or  the  churchyards. —  Cro.  Jac.  321.  1  R.  2,  c.  15.  50  Edw.S, 
c.  5.  And  though  a  married  woman  is  in  general  exempt  from  arrest  in  a 
civil  case,  she  is  liable  to  be  apprehended  when  she  has  committed  an 
offence,  which  would  subject  her  to  punishment.  —  3  Burrows,  1681.  2 
Leach.,  95i.  1102.  Dalt.  J.  Ch.,  170.  Hawk,b.\,c.  1.  2  Kent,  1^9, 
4th  edit.      1  Russcl  on  Crime,  18. 

Senators  and  Representatives  in  Congress,  have  no  exemption  from 
arrest  in  cases  of  treason,  felony,  and  actual  breach  of  the  peace. —  Con- 
stitution of  the  United  States,  art.  1,  sec.  6,  §  1.  2  Story  on  the  Constit. 
Law  of  United  States,  325,  et  seq.  And  this  is  the  law  with  regard  to 
peers  and  members  of  Parliament  in  England.  —  Fortes,  359.  4  Inst., 
24,  25.     2  Wils.  159,  160.     Dalt,  J.  Ch.,  170. 

And,  according  to  the  resolution  of  both  Houses  of  Parliament,  mem- 
bers are  nof'privileged  even  when  accused  of  a  seditious  libel.  — 11  Harg. 
St.  Tr.,  305.  A  foreign  consul  is  not  privileged  from  arrest  and  prose- 
cution for  a  misdemeanor,  by  virtue  of  his  consular  appointment.—  United 
States  V.  Raora,  2  Dall.  99,  n.  And  a  prior  assault  by  a  foreign  minister 
deprives  him  of  his  privileges  and  will  excuse  a  battery  committed  on  his 
person. —  United  States  v.  Whittle,  Whart.  Pen.  Dig,  288.  See  3  Story 
on  Constit.,  519.  525.  In  the  case  of  the  Commonwealth  v.  Kosleff,  5 
Sergt.  <Sf  Rawle.,  545,  it  seems  a  consul  general  is  not  protected  by  the 
law  of  nations  for  a  prosecution  and  indictment  for  rape.  But  the  state 
courts  have  no  jurisdiction  in  such  case  :  the  exclusive  jurisdiction  is 
vested  in  the  courts  of  the  United  States.  See  farther,  State  v.  La  Foret^ 
2  Nott  cf  McCord,  217. 

IN  WHAT  CASES  AN  ARREST  MAY  BE  MADE. 

In  England,  it  seems,  an  arrest  may  be  made  for  every  misdemeanor 
or  offence,  indictable  at  the  sessions,  which  subjects  the  delinquents  to 
corporeal  punishment,  even  though  it  does  not  amount  to  a  breach  of  the 
peace.  — DicA;.  Scss.,  88.  4  /.  B.  Moore,  195.  1  B.  df  B.,  548.  Grow, 
84.  Fortes,  37,  358,  140.  11  St.  Tr.,  305,  316.  2  Wils.,  159,  160. 
2  Salk.,  698.  Comb,  358.  12  Co.,  131.  Dalt.  Just.,  C,  170.  34  Ed- 
ward 3,  c.      1  Hawk-,  b.  2,  c.  13,  5.  11.     Barl.  Just  ,41. 


40  ARREST. 

The  constiiiuion  of  the  United  States  provides,  that  "  a  person  charged 
ill  any  stale  with  treason,  felony,  or  other  crime,  who  shall  flee  from  jus- 
tice, and  be  found  in  another  state,  shall,  on  demand  of  the  executive  au- 
thority of  the  state  from  which  he  fled,  be  delivered  up,  to  be  removed  to 
the  state  having  jurisdiction  of  the  crime." — Const,  of  U.  S.,  art.  4,  sect. 
2.  .i  IStary  on  Co7ist.,  675  —  677.  State  v.  Howell,  Charlton,  120.  No 
authority  to  arrest  persons  who  have  perpetrated  crimes  in  a  foreign  coun- 
try, exists  under  the  laws  of  the  United  States,  or  of  any  of  the  individual 
states.  The  common  law  considers  crimes  as  altogether  local,  and  cogniza- 
ble aiid  punishable  exclusively  in  the  country  where  they  are  committed. — 
Story,  Conf.  of  Laics,  516,  et  seq.  Commonwealth  v.  Greene,  17  Mass.  R., 
515,  545,  546,  et  seq.  Wolf  v.  Oxholm,  6  3[aule  <^  Selw.,  99.  Scovillev. 
Canfeld,  14  Johns.,  338,  340.  State  v.  Knight,  Taylor's  R.,  65.  Ruth- 
erf  Inst.,  b.  2,  ch.  9,  sec.  12.  Martbis  Law  of  Nations,  h.  3,  cli.  3,  ^^  22, 
23,  24,  25.  And  Lord  Coke  expressly  maintains,  that  the  sovereign  is 
not  bound  to  surrender  up  fugitive  criminals  from  other  countries,  who  have 
sought  a  refuge  in  his  dominions.  —  3  Co.  List.,  ISO.  See  also,  Common- 
wealth v.  Deacon,  10  Scrg.  Sf  Rawle,  125.  2  Story  on  Const.,  675,  676. 
Rex  V.  Ball,  1  Amer.  Jurist,  297.  Case  of  Jose  Ferriera  Dos  Santos,  2 
Brock.,  493.  It  seems,  however,  by  4  Taunt.,  34,  that  if  a  person  having 
committed  a  felony  in  a  foreign  country,  comes  into  England,  he  may  be 
arrested,  conveyed,  and  given  up  to  the  magistrates  of  the  country,  against 
the  laws  of  which  the  offence  was  committed. 

With  regard  to  the  time  that  an  arrest  maybe  made.  A  person  may 
be  arrested  in  the  night  as  well  as  the  day. — 9  Co.,  66.  And  though  the 
Statute  26,  Car.  2,  c.  7,  s.  6,  prohibits  arrests  on  Sundays,  it  excepts  the 
cases  of  treasons,  felonies,  and  breaches  of  the  peace  ;  in  these  cases, 
therefore,  an  arrest  may  be  made  on  that  day. —  Cald.,  291,  2.93.  1  T.  R., 
265.  Willes,  4d9.  Pearce  v.  Attwood,  13  Mass.  R.,  324.  Comtnonioealth 
V.  Myre,  1  Serg.  df  Rawle,  351.  Roscoe's  Dig.  Er.  Ev.,&29.  1  Russell, 
519.  Welles  v.  Gurney,  8  Barn.  Sf  Cress.,  769.  Goddard  v.  Harris,  5 
Moore  ^  Paine,  122.  'S.  C.  7  Bingh.,  320.  See  Watson,  Office  and  Duty 
of  Sheriff,  62,  63.     Law  Lib.,  No.  19,  pp.  45,  46. 

1.  Are  not  private  individuals  enjoined  by  law  to  arrest  an  offender, 
when  present  at  tlie  time  a  felony  is  committed,  or  dangerous  wounds 
given  ? 

They  are,  on  pain  of  fine  and  imprisonment  if  he  escape  through 
their  negligence.  ,,  And  every  private  person  is  bound  to  assist  an  officer, 
demanding  his  help  in  the  taking  of  a  felon,  or  the  suppressing  of  an  affray, 
and  apprehending  the  affrayers  ;  and  if  he  refuse  to  assist,  before  the  de- 
termination of  the  affray,  he  is  punishable  with  fine  and  imprisonment. — 
1  East,  P.  C,  298.  4  Blac.  Com.,  292.  1  Hale,  587.  Com.  Dig.,  Ln- 
prisonment,  H.  4.  Bac.  Abr.  Trespass,  D.  3.  Burns'  Justice,  Arrest,  111. 
Williams'  Just.,  Arrest,  II.  In  New  York,  if  the  oflicer  has  authority  to 
make  the  arrest,  a  bystander  when  called  upon  for  aid,  is  guilty  of  a  mis- 
demeanor, if  he  does  not  obey.  But  if  the  officer  does  not  act  under  a 
lawful  authority,  the  bystander  is  a  trespasser,  if  he  assists  hiin.  —  Elder 
V.  Morrison,  10  Wend.,  128.     See  Commonwealth  v.  Field,  13  Mass.  R., 


ARREST.  41 

321.  1  Russel,  522,  525.  But  there  is  a  distinction  as  to  llie  authority 
to  apprehend ;  when  the  felony  was  committed  in  the  view  of  a  private 
person,  and  when  committed  in  his  absence  ;  for  all  persons  who  are  pre- 
sent when  a  felony  is  committed,  or  dangerous  wound  given,  are  bound  to 
assist,  in  order  to  arrest  the  offenders.  — 11  Johns.  Rep.,  486.  See  also, 
Holley  V.  AIix,  3  Wendell,  350.  A  private  person  cannot,  of  his  own  au- 
thority, arrest  a  person  who  has  been  engaged  in  an  affray,  or  breach  of 
the  peace.  But  during  an  affray,  any  person  may,  without  a  warrant  from 
a  magistrate,  to  restrain  any  of  the  offenders,  in  order  to  preserve  the 
peace. — 11  Johns.  Rep.,  486.      Wallace's  Case,  4  Rogers,  Rec.  111. 

A  justice  of  the  peace  may  issue  process,  and  make  it  returnable  at 
any  place  in  the  county,  in  which  he  is  an  officer. — Schroepel  v.  Taylor, 
10  Wend.,  190.  Gurnsy  v.  Lovell,  9  Wend.,  319.  Although  in  that  state 
justices  of  the  peace  are  rendered  town  officers  to  a  certain  extent,  by 
Statute  1818,  p.  50,  §  2.—  Gurnsey  v.  Lovell,  9  Wend.,  319.- 

Aiding  the  escape  of  any  person  detained  for  any  felony,  is  punisha- 
ble by  confinement  in  states  prison.  — Peop/e  v.  Washburn,  10  Johns.  Rep., 
160,  161. 

Under  the  Revised  Laws  of  New  York,  a  constable  may  detain  a 
prisoner  twelve  hours,  to  find  a  magistrate  to  hear  the  cause.  Before  this 
provision,  in  the  Revised  Laws,  he  might  detain  him  a  reasonable  time,  if 
he  acted  bona  fide  for  that  purpose.  —  Arnold  v.  Sleeves,  10  Wend.,  514. 

A  misnomer  of  the  person  in  the  process,  on  which  an  arrest  is  made, 
subjects  the  actors  to  an  action  for  false  imprisonment.  —  Scott  v.  Ely,  4 
Wend.,  555.  Griswoldv.  Sedgwick,  6  Cowen,  456.  S.  C.  1  We?id.,126. 
Mead  V.  Haws,  7  Co  wen,  332. 

Trespass  will  not  lie  against  a  party  who  has  procured  a  search  war- 
rant to  search  for  stolen  goods,  if  tlje  warrant  be  duly  issued,  and  regu- 
larly executed.  — fieo/^y  v.  Perkins,  6  Wend.,  382. 

No  manual  touching  of  the  body,  or  actual  force,  is  necessary  in  or- 
der to  constitute  an  arrest  and  imprisonment.  It  is  sufficient  if  the  party 
is  within  the  power  of  the  officer,  and  submits  to  the  arrest. —  Gold  v.  Bis- 
sel,  1  Wendell,  215.  State  v,  Curtiss,  1  Hayw.,  171.  Roscoe's  Digest 
Cr.  Ev.,  356.     See  Collins  \.  Snuggs,  6  Moore,  111.     Russen  v.  Lucas, 

1  Car.  <Sf  Paine,  153.     Ry.  ^  Moody,  26.      George  v.  Bradford,  3  Car.  6f 
P.,  464.      Moo.  (^  Mai,  244.     Berry  v.  Adamson,  6  Barn,  cj-  Cress.,  528. 

2  Car.  Sf  P.,  503. 

It  is  held,  that  a  regular  ojficer  is  not  bound  to  exhibit  his  authority 
or  process,  when  he  arrests  a  defendant,  but  a  special  deputy  is.  —  Arnold 
V.  Sleeves,  10  Wend.,  514. 

In  Pennsylvania,  an  arrest  may  be  made  for  felony,  without  warrant, 
notwithstanding  sec.  7,  art.  9,  of  the  Constilniion  of  Pennsylvania ;  and  a 
private  person  may  make  it  as  his  peril  ;  but  quere  if  he  can  arrest  for 
misdemeanor,  or  for  receiving  stolen  goods. —  Wakely  v.  Harl,  6  Binney's 
Rep.,  316.  A  warrant  to  arrest  a  person  charged  with  a  crime,  upon  the 
complaint  of  a  private  informer,  cannot  legally  issue  without  the  oath  of  the 
complainant.  — S^aie  v.  /.  H.,  1  Tyl.,  444.  A  warrant  of  arrest  in  a  crimi- 
nal case,  issued  upon  common  rumor  and  report  of  the  party's  guilt,  though 
it  recite  that  there  is  danger  of  his  escape,  before  witnesses  could  be  sum- 
6 


42  ASSIGNMENT. 

moned  to  enable  the  magistrate  to  issue  it  upon  oath,  is  illegal  and  void,  on 
the  face  of  it. —  Connor  v.  Commonwealth,  3  Binn.,  38. 

A  warrant  by  a  justice,  not  directed  to  any  particular  person  in  office, 

is  bad.  —  Halt  v.  Moore,  Addis,  376.      But  a  warrant   directed  to , 

constable,  is  good,  if  executed  by  the   constable  of  the  district. — Paul  v. 
Van  Kirk,  6  Binnetj,  124. 

A  justice  of  the  peace  may  authorize  any  citizen  to  execute  a  warrant 
of  arrest  in  a  criminal  case  ;  but  no  private  person,  and  no  other  than  the 
constable  of  the  place  where  it  is  to  be  executed,  can  be  compelled  to  ex- 
ecute it.  —  Co?)imomvealth  v.  Keeper,  <^c.,  1  Ash.,  183. 

Ill  Connecticut,  it  is  held,  that  a  magistrate  after  having  arrested  an 
offender  against  the  riot  act,  on  view,  is  not  authorized,  without  a  written 
complaint  or  information,  to  bind  him  over  to  a  higher  court  for  trial. — 
Tracy  v.  Williams,  4  Conn.  R.,  107. 

In  Indiana,  if  a  magistrate  officiously,  and  without  complaint  to  him, 
on  oath,  or  without  having  been  an  eye-witness,  issues  his  warrant  against 
an  individual  for  a  breach  of  the  peace,  he  renders  himself  liable  in  an 
action  of  trespass.  —  Flack  v.  Harrington,  1  Brecse  Rep.,  J  65.  And  in 
that  state,  the  accused  has  the  right  to  select  any  magistrate  to  try  the 
case,  in  the  township.  —  Stat,  of  Indiana,  1829,  1830,  ch.  46. 

In  Massachusetts,  a  justice  of  the  peace  has  no  authority  to  direct 
his  warrant  to  a  private  person.  —  Cominonwealth  v.  Foster,  1  Mass.  Rep., 
488.  7  Dane's  Abr..  250.  But  quere,  whether  he  may  not  do  so,  where 
no  officer  is  at  hand  to  serve  it.  —  Ibid. 

In  Illinois,  a  magistrate  may  appoint  a  constable  in  a  criminal  case, 
where  there  is  a  probability  that  a  criminal  will  escape.  — F/acA:  v.  Ankeny, 
1  Breese  Rep.,  144. 

In  Vermont,  a  sheriff  is  not  obliged  to  show  his  precept,  either  ti> 
the  person  who  is  to  be  arrested  by  it,  or  to  the  bystanders. — 2  Tyler''s  R., 
214.      State  V.  Curtis,  1  Hayw.,  471. 


ASSIGNMENT. 

VOLUNTARY  ASSIGNMENT  BY  DEBTORS  FOR  BENEFIT 
OF  CREDITORS. 

1.  May  not  a  debtor  in  failing  circumstances  by  assignment  of  his 
estate  in  trust  prefer  one  creditor  to  another  ? 

He  may,  if  the  assignment  is  made  bona  fide  and  in  good  faith.  The 
question  of  the  validity  of  such  conveyances,  and  under  what  circum- 
cumstances  they  are  deemed  fraudulent  or  bona  fide,  has  been  handsomely 
treated  upon  by  that  able  and  distin^ui.shed  American  jurist,  Mr.  Justice 
Story,  1  Story's  Eq.  Juri.^^p.,  341,  under  the  head  of  constructive  fraud, 
sections  349.  369,  370.  378,  379.  It  may  be  stated  in  general  that  such 
priorities  and  preferences  are  not  deemed  fraudulent  or  inequitable  ;  and 
even  a  stipulation,  on  the  part  of  the  debtor,  in  such  an  assignment,  that 
the  creditors,  taking  under  it,  shall  release  and  discharge  him  from  all 
iheir  further  claims  beyond  the  properly  assigned,  will  (it  seems)  be  valid 


ASSIGNMENT.  43 

and  binding  on  such  creditors.  It  seems  to  be  a  well  settled  principle  in 
the  English  and  American  law  that  a  debtor  may  prefer  one  creditor  to 
another. — Story^s  Eg.  Juris.,  vol.  2,  p.  302.  Pierpont  v.  Lord,  4  Wash. 
C.  C.  Rep.,  232.  Brashear  v.  West,  7  Peter's  R.,  608.  Wheeler  v. 
Sumner,  4  Mason  Cir.  R.,  183.  Halsey  v.  Whitney,  Ibid,  206.  Spring 
V.  South  Car.  Ins.  Co.,  8  Wheat.  R.,  268.  Murray  v.  Riggs,  15  Johns. 
571.  Grover  V.  Wakeman,  11  Wend.,  187.  Tillou  v.  Britton,  A  Halst., 
121.  Haven  v.  Richardson,  5  iV.  Hamp.,  113.  5«rc?  v.  Smith,  4  Dall., 
85.  Widgerry  v.  Haskill,  5  Mass.,  153.  Stevens  v.  J5eZ/,  6  Mass.,  342. 
Robinson  v.  Rapely,  3  Stew.,  86.  Ingraham  v.  Wheeler,  6  Conn.,  277. 
Cameron  v.  Montgomery,  13  /S.  (f-  22.,  132.  Brashear  v.  VFe^f,  7  Peter, 
608.  Pierpont  v.  Graham,  4  V7asA.  C.  C,  232.  i/afcA  v.  5^mi<A,  5 
Jlia*A\,  49.  Brooks  v.  Marbury,  1 1  VT/ieoion,  78.  Savings  Bank  v.  Bates, 
8  Conn.,  505.  Catlin  v.  Eagle  Bank,  5  Conn.,  133.  United  States  v. 
King,  Wallace,  21.  Harman  v.  Reese,  1  Browne,  11.  Lippincott  v.  5ar- 
Aer,  2  Binn.,  186.  Hickley  v.  Farmers,  d^c.  Bank,  5  Ci7Z.  (^  Johns.,  377. 
Nicoll  V.  Mumford,  2  Johns.  Ch.  Rep.,  529.  Browne  v.  Minturn,  2  GaZ/. 
iiep.,  557.  iVioo/-e  v.  Collins,  3  7)ev.  iV.  C.  i^.,  126.  Mo/o^f  v.  McDowal, 
1  ilicCorJ'^  CA.  i^ep.,  434.  5i//am  v.  Greene,  5  iV.  fl".  i^ep.,  71.  i/aue» 
V.  Richardson,  Ibid,  113.  Marburry  v.  Brooks,  7  Wheaton,  556.  Grover 
V.  Wakeman,  11  Wend.  Rep.,  194,  195.  /Sia^e  o/  Maryland  v.  5anA  o/" 
Maryland,  6  Gj7/.  <^  Johns.,  205.  Pickstock  v.  Lyster,  3  Maule  6f  Selw., 
371.      T/je  iCm^  v.  M^a^5ow,   3  Price's  Exch.  Rep.,  6.      M^i7^  v.  Franklin, 

1  Binney's  Rep.,  502.  Hendricks  v.  Robinson,  2  Johns.  Ch.  Rep.,  307, 
308.  Stevens  v.  5eZ/,  6  Mass.  Rep.  339.  Petree  v.  Espinasse,  2  Mylne 
Sf  Keen.,  496.  5*7/  v.  Careton,  Id.,  503.  510.  Cwr^/*  v.  Pnce,  12  Fe^., 
103.      Worsely  v.  i)e  ilfa«05,  1  ^wrr.,  474.      1  ilfar/J.  CA.  Pr.,  222,  223. 

2  Pon5.  jBy.,  Z>.  1,  c/n.  4,  1^  12.  Jeremy  on  Eg.  Jurisd.,  b.  3,pt.  2,  c/j.  3,  § 
4.  Ma/m  V.  Gamsey,  16  /o^«.  P.,  189.  Reickart  v.  Castelor,  5  Binn., 
109.  Drinkwater  v.  Drinkwater,  4  Mass.  R.,  354.  The  decisions  in  New 
York  are  against  the  validity  of  an  assignment  with  such  a  clause  of  re- 
lease.— Hyslop  V.  Clarks,  14  Johns.  R.,  459.  Austin  v.  i>eZZ,  20  Johns. 
R.,  442.  Seaving  v.  Brinckerhoof,  5  Johns.  Ch.  R.,  329.  PFaA:eOTCfn  v. 
Grover,  4  Pa^e  P.,  23.  6'.  C.  11  PFencZ.  P.,  187.  And  see,  Ingraham  v. 
TFAeeZer,  6  Conn.,  227.  Attkinson  v.  Jordan,  5  Ham. ,293.  Lord  v.  Brig 
Watchman,  8  ^m.  /wr.,  284.  The  law  in  New  Jersey  is  an  exception  to 
the  rule  in  the  text.  It  is  made  essential  there  by  statute  —  {Elmer's 
Digest,  16,)  to  the  validity  of  an  insolvents  assignment,  that  it  create  no 
preferences  and  that  it  be  for  the  equal  benefit  of  the  creditors.  An  as- 
signment of  real  and  personal  property  in  trust,  to  pay  a  favored  creditor, 
and  then  to  divide  the  residue  rateably  among  the  other  creditors,  and 
the  surplus,  if  any,  to  return,  though  good  in  New  York,  where  it  was 
made,  was  adjudged  void  as  to  property  personal  as  well  as  real  in  New 
Jersey.  —  Varnum  v.  Camp,,  1  Green's  N.  Y.  Rep.,  326. 

But  the  New  Jersey  act  to  secure  creditors  an  equal  and  just  division 
of  the  estate  of  debtors,  who  convey  to  assignees  for  the  benefit  of  cred- 
itors, does  not  extend  to  a  solitary  transfer  of  an  individual  item  of  pro- 
perty to  a  creditor  in  payment  of  a  debt  ;  and  the  operation  of  the  act 
must  be  confined,  if  not  to  cases  where  trust  is  created,  at  least  to  cases 
where  there  is  something  like  , universality  in  the  assignment.— P27Zou  v. 
Britton,  4  Halst.,  131. 


44  ASSIGN  JI  EXT. 

In  Georgia,  by  statute  of  19th  December,  1818,  all  assignments  and 
transfers  of  property  by  insolvent  debtors,  giving  preferences  are  declared 
to  be  fraudulent  and  void.  — Princes  Digest,  164.  The  insolvent  act  of 
Massachusetts  of  1838,  eh.  163,  establishes  much  the  same  law.  The 
statute  of  Ohio,  of  1838,  prohibits  assignments  in  trust,  in  contemplation 
of  insolvency,  with  the  design  to  prefer  one  creditor  to  another,  and  such 
assignments  are  made  to  inure  rateably  to  all.  So  the  Connecticut  act  of 
1828,  declares  all  assignments  of  lands,  chattels  or  choses  in  action  with 
a  view  to  insolvency,  to  any  person  in  trust  for  his  creditors,  or  any  of 
them,  to  be  void  as  to  creditors,  unless  made  in  writing  for  the  benefit  of 
all  the  creditors,  in  proportion  to  their  claims,  and  be  lodged  for  record  in 
the  probate  office  of  the  district,  and  the  duty  of  such  trustee  is  specially 
regulated.  —  Statutes  of  Connecticut,  1838,  p.  300.  In  Pennsylvania  by 
statute  of  24th  March,  1818,  voluntary  assignments  for  the  benefit  of  cred- 
itors must  be  recorded  within  thirty  days,  or  they  are  void  as  against  any 
of  the  creditors  of  the  assignor,  without  as  well  as  within  the  assignment. 
In  order  to  entitle  the  creditors,  named  in  a  general  assignment  for  the 
benefit  of  creditors  to  take  under  it,  it  is  not  necessary,  that  they  should 
be  technical  parties  thereto. —  Gazzard  v.  Lord  Landerdale,  3  Sim.,  1. 
Acton  v.  Woodgate,  2  Mylne  dj-  Keene,  492.  New  England  Bank  v.  Lewis, 
8  Peck,  113.     Halsey  v.   Whitney,  4  Mason  R.,  206.      Smith  v.  Wheeler, 

I  Vent.  R.,  128.  2  Keble  R.,  564.  Bradshear  v.  West,  7  Peter's  R., 
608.  The  assent  of  the  creditors  to  be  benefitted  by  the  assignment,  has 
been  held  under  the  New  England  attachment  and  trustee  process,  to  be 
essential  to  its  validity,  so  far  as  that  the  intervening  attachment  of  another 
creditor  who  is  no  party  to  the  assignment,  issued  before  such  assent  be 
given  has  been  preferred. —  Wtdgerry  v.  Haskill,  5  Mass.  Report,  144. 
Stevens  v.  Bell,  6  Ibid,  339.  Ward  v.  Samson,  6  Pick.  R.,  350.  Jewett 
V.  Barnard,  6  Greenl.  Rep.,  381.  In  Boyden  v.  Moore,  11  Pick.  R.,  326, 
it  was  held  that  an  assignment  in  trust  to  pay  the  assignee  and  other 
( ii-ditors  who  were  parties  and  assenting  was  valid.  But  if  not  parties 
and  assenting,  an  intervening  attachment  prior  to  the  assent  will  have 
preference.  So,  a  voluntary  assignment  in  contemplation  of  insolvency 
and  giving  preferences  made  in  Pennsylvania,  is  not  good  in  Delaware 
against  a  subsequent  attachment  by  a  citizen  there,  of  the  insolvents  ef- 
fects in  Delaware,  Mayberry  v.  Shissleer,  1  Har.  R.,  349,  but  subject  to 
this  qualification  the  assent  of  the  creditors  need  not  be  given  at  the  time 
of  the  assignment,  and  a  subsequent  assent  in  terms,  or  by  actually  re- 
ceiving the  benefit  of  the  assignment,  will  be  sufilcienl. — Ellison  v.  Elli- 
son, 6  Vcs.,  656.  Cunninghumx.  Freeborn,  1  Edw.  Ch.  Rep.,  262.  Mar- 
burry  v.  Brooks,  7  Wheat.,  556.  Brooks  v.  Marburry,  11  Ibid,  79.  Bra- 
shear  V.  West,  7  Peter's  U.  S.  Rep.,  608.  Nicoll  v.  Mumford,  4  Johns. 
Ch.,  522.     Browne  v.  Minturn,  2  Gallis,  557.      Cunningham  v.  Freeborn, 

I I  Wend.,  240. 

The  assignment  has  been  held  to  be  good  against  a  subsequent  at- 
tachment, if  the  creditors  had  assented  to  the  assignment  prior  to  the  at- 
tachment, and  the  assignment  has  been  supposed  to  be  valid,  even  without 
such  intervening  assent,  in  the  case  of  an  assignment  to  trustees,  for  the 
benefit  of  the  preferred  creditors.  — 5roiu«  v.  Minturn,  2  Gall.  Rep.,  557. 
Halsay  v.  Whitney  A  Mason's  Rep.,  217.     Hastings  v.  Baldwin,  17  Mass. 


ASSIGN^IENT.  45 

Rep.,  552.  The  legal  estate  passes  and  vests  in  the  trustees,  and  a  (■omt 
of  equity  will  compel  the  execution  of  the  trust  for  tlie  benefit  of  the 
creditors,  though  they  be  not,  at  the  time  assenting  and  parties  to  the  con- 
veyance.—  Small  V.  Oudley,  2  P.  Wms.,A21.  Nicoll  v.  Mumfurd,  4  John. 
Ch.  R.,  529.  Brooks  v.  Marburry,  11  Wheaton,  97.  Gray  v.  Hill,  10 
Serg.  cj-  Rawle,  436.  Halsay  v.  Whitney,  4  Masoii's  Rep.,  206.  This 
rule  in  the  English  chancery  seems  to  have  been  made  subject  to  the 
same  embarrassing  qualifications.  If  the  creditors  are  not  parties  or 
privies  to  a  conveyance  by  a  debtor  to  trustees,  to  pay  scheduled  creditors 
and  do  not  conform  to  its  provisions,  and  the  trustees  have  not  dealt  with 
the  creditors  in  pursuance  of  the  deed,  they  cannot  in  chancery  enforce 
performance,  and  have  no  lien  on  the  property  conveyed.  The  deed  is 
regarded  as  a  mere  disposition  between  the  debtor  and  his  trustee  for  his 
own  accommodation,  and  the  property  is  not  deemed  to  be  withdrawn  from 
the  debtors  absolute  control.  If,  however,  there  be  an  actual  settlement 
made  for  vesting  an  estate  or  stock  in  trustees  for  volunteers,  the  case  is 
different,  and  the  trustees  having  the  legal  estate  becomes  such  for  the 
volunteers,  who,  as  cestui  que  trusts  may  claim  against  the  trustee  in  the 
deed.  —  Ellison  v.  Ellison,  6  Ves.,  662.  Walwynn  v.  Coutts,  Merrivale's 
Rep.,  707.  Garrard  v.  Lord  Landcrdale,  3  Simon^s  Rep-,  1.  Actor  v. 
Woodgate,  2  Mylne  <Sf  Kcene,  492.  In  Marston  v.  Cobourn,  17  Mass. 
Rep.,  454,  a  conveyance  to  trustees  for  the  benefit  of  creditors  was  said 
to  be  void  without  the  assent  of  the  creditor,  though  assented  to  by  the 
trustees,  but  in  that  case  the  deed  was  held  to  be  incomplete,  according 
to  the  intention  of  the  parties  when  an  attachment  intervened  and  pre- 
vailed. Though  assignments  of  possibilities,  contingent  interests,  and  of 
rights  or  choses  in  action,  may  not  be  valid  at  law  unless  the  creditor  as- 
sents, yet  no  difficulty  of  this  kind  exists  in  equity,  where  the  assign- 
ment is  considered  as  amounting  to  a  declaration  of  trust.  See  the  nu- 
merous cases  referred  to  in  the  notes  to  2  Story's  Equity  Jurisprudence, 
p.  305. 

If  an  assignment  be  directly  to  the  creditors,  their  assent  must 
be  shown,  but  if  to  trustees  for  their  benefit,  the  legal  title  passes 
to  the  trustees  without  their  assent,  but  it  must  be  made  with  the  know- 
ledge and  privity  of  the  trustees  or  the  creditors.  The  assent  of  the 
trustees  is  presumed,  until  the  contrary  be  shown,  and  if  the  assignment 
be  made  without  their  knowledge,  they  may,  when  it  comes  to  their  know- 
ledge aflirm  it,  and  will  be  binding. —  Small  v.  Marwood,  9  B.  6f  Cress., 
300.  Browne  v.  Minturn,  2  Gall.  Rep.,  557.  Smith  v.  Wheeler,  1  Vent. 
128.  Marburry  \.  Brooks,!  Wheat.,  556.  Weston  v.  Barker,  13  Johns., 
276.  Gait  V.  Dihrell,  10  Yerger,  146.  Nicoll  v.  Mumford,  4  Johns.  Ch. 
Rep.,  529. 

It  has  already  been  remarked  that  it  is  not  necessary  that  creditors, 
should  be  technical  parties  to  an  assignment,  made  for  their  benefit  in 
order  to  entitle  them  to  take  under  it.  It  will  be  sufficient  if  they  have 
notice  of  the  trust  in  their  favor  and  they  assent  to  it ;  and  if  there  be 
no  stipulation  for  a  release,  or  any  other  condition  in  it  which  may  not  be 
for  their  benefit,  their  assent  will  be  presumed,  until  the  contrary  appears. 
—  Small  V.  Marwood,  9  Barn.  <^  Cress.,  300.  New  England  Bank  v. 
Lewis,  8  Pick.,  113.     Halsey  v.  Whitney,  4  Mason  R.,  206.     Egberts  v. 


46  ASSIGNMENT. 

Wood,  3  Paigt'x  Rep.,  517.  Nicoll  v.  Mumford,  4  Johns.  Ch.  R.,  522. 
Such  a  general  assignineiil,  bona  fide,  made  by  the  debtor  and  assented 
to  by  the  assignee,  will  be  deemed  a  valid  conveyance,  founded  on  a  valu- 
able consideration,  and  good  against  creditors  proceeding  adversely  to 
it  by  attachment,  or  seizure  in  execution  of  the  property  conveyed  thereby, 
at  least  unless  all  the  creditors  for  whose  benefit  the  assignment  is  made, 
repudiate  it.  — iliar^Mry  v.  Brooks,  7  Wheat.,  556.  11  Wheat.  R.,  78. 
Pickstock  V.  Lyster,  3  Maule  6f  Selw.,  371.  Day  v.  Durham,  2  John.  Ch. 
R.,  182.  Nicoll  V.  Mumford,  4  Johns.  Ch.  R.,  522.  Small  v.  Marwood, 
9  Barn.  <^  Cress.,  300.  Halsay  v.  Whitney,  4  Mason  R.,  206.  Wilt  v. 
Franklin,  1  Bin.  R.,  502.  517.  Where  the  creditors  are  named  in  the 
assignment,  as  parties,  and  they  are  required  to  execute  it  before  they  can 
lake  under  its  provisions  there,  they  must  signify  their  assent  in  that  mode  : 
otherwise  they  cannot  take  under  the  instrument,— Garrard  v.  Lord,  Lau- 
derdale, 3  Sim.  R.,  I.  But  where  they  are  not  required  to  be  parties  to 
the  instrument,  there  they  may  take  the  benefit  of  the  trust  by  notice  to 
the  trustee  within  the  time  prescribed  therefor,  if  any,  and  if  none  is  pre- 
scribed, then  within  a  reasonable  time,  and  before  a  distribution  is  made 
of  the  property.  — //aZ.scy  v.  Whitney,  A  Mason  R.,  206.  Actowv.  Wood- 
gate,  2  Mylne  df  Keene,  492. 

Where  a  specific  time  is  prescribed  for  the  creditors  to  come  in  and 
assent  to  the  assignment,  as  parties  thereto,  or  otherwise,  there  they  must 
comply  strictly  with  the  condition,  or  they  will  be  excluded  from  the  bene- 
fit of  the  trust ;  unless,  indeed,  by  reason  of  absence  from  the  country,  or 
some  other  cause,  any  creditor,  has  not,  within  the  time  prescribed,  had 
any  knowledge  of  the  existence  of  the  assignment. — Phoenix  Bank  v. 
Sullivan,  9  Pick.,  410.  De  Caters  v.  Xe  Roy  de  Chaumont,  2  Paige's  R., 
490.  In  all  such  cases  of  general  assignments,  voluntarily  made  by  the 
debtor,  for  the  benefit  of  creditors,  whether  they  are  specially  named  in 
the  instrument,  or  only  by  a  general  description,  if  such  creditors,  are  not 
parties  thereto,  and  have  not  executed  the  same,  the  assignment,  is  deemed 
in  equity,  as  well  as  at  law,  to  be  revocable  by  the  debtor,  at  least,  unless 
as  to  creditors,  who  have  assented  to  the  trust,  and  given  notice  thereof  to 
the  assignee. 

For,  until  such  assent  and  notice,  the  assignment  is  treated,  as  be- 
tween the  debtor  and  the  assignee,  as  merely  directing  the  mode,  in  which 
the  assignee  shall  and  may  apply  the  debtor's  property  for  his  own  benefit. 
—  Walwyn  v.  Coutts,  3  Meriv.  R.,  767.  S.  C.  3  Sim.  R.,  14.  Page  v. 
Broom,  4  Russ.  R.,  6.  Acton  v.  Woodgate,2  Mylne  ^  Keene,  492.  Gar- 
rard V.  Lord  Landerdalc,  3  Sitn.  R.,  1.  Gaskell  v.  Gaskell,  2  Young  6f 
Jerv.,  502.     Maber  v.  Hobbs,  2  Young  6f  Coll.,  317,  327. 

The  assent  of  absent  persons  to  an  assignment,  will  be  presumed, 
unless  their  dissent  be  expressed,  if  it  be  made  for  a  valuable  consideration, 
and  be  beneficial  to  them.  —  North  v.  Turner,  9  Scrg.  <Sj-  Rawlc,  224. 

So,  the  assent  of  creditors  to  an  assignment  for  their  benefit,  may  be 
presumed,  where  a  release  is  not  a  condition  of  their  receiving  its  avails. 
Wheeler  v.  Sumner,  4  Mason,  183.  JIalsey  v.  Whitney,  Ibid,  206.  And 
the  assent  of  preferred  creditors  will  be  presumed,  where  they  are  to  be 
paid  in  full. — North  v.  Turner,  9  Scrg.  <Sf  R.,  244.  Copeland  v.  Weld,  8 
Green//.,  411.     New  England   Bank    v.   Lewis,  8  Pick.,  il3.     S.  P.  De 


ASSIGNMENT.  47 

Forrest  v.  Bacon,  2  Conn.,  633.  If  no  schedule  is  made,  at  the  time  of 
the  conveyance  of  the  property  assigned,  or  of  the  amount  of  debts,  or  of 
liabilities  to  be  indemnified  against,  this  may  be,  prima  fucie,  presumption 
of  fraud  ;  but,  if  possession  accompany  the  transfer,  and  the  transaction 
be  in  all  other  respects,  fair,  the  mere  want  of  a  schedule  will  not  render 
it  fraudulent.  —  Halsey  v.  Whitney,  4  Mason,  206.  Haven  v.  Richardson, 
5  A'^.  Hamp.,  113.  Cunningham  v.  Freeborn,  11  Wend.,  240.  IStevens  v. 
Bell,  6  Mass.,  339.  Pierpont  v.  Graham,  4  Wash.  C.  C,  232.  Wilt  v. 
Franklin,  1  Binn.,  523.  Burd  v.  Smith,  4  Dall.,  76.  Hower  v.  Geesaman, 
17  Serg.  Sf  Rawle,  251.  Deaver  v.  Savage.  3  Miss.,  252.  Robinson  v. 
Rapely,  2  Stew.,  86.  Where  an  assignment  is  fraudulent  and  void  in  part, 
the  whole  is  void.  —  Tucker  v.  Welsh,  17  Mass.,  164.  Grover  v.  Wakeman, 
11  Wendell,  187.  4  Pm;§-e,  24.  McKey  v.  Cairnes,  5  Cowen,  547.  1 
Hopk.,  373.  Harris  V.  Sumner,  2  Pick.,  137.  But  where  a  debtor  assigns 
property  to  two  persons,  by  one  instrument,  "to  hold  to  them  respectively 
in  the  proportions  which  the  debts  due  to  them  respectively  bear  to  each 
other,"  and  the  assignment  is  fraudulent  and  void,  as  to  one  of  the  as- 
signees, nevertheless  valid  as  to  the  other,  if  innocent  of  the  fraud. — Prince 
v.  Shephard,  9  Pick.,  176. 

An  assignment  by  a  debtor,  of  all  his  property  to  trustees,  for  the 
benefit  of  such  creditors,  as  should,  within  a  given  time,  execute  a  release 
of  all  demands,  is  good,  if  certain  of  the  creditors  agree  to  accept  it  upon 
that  condition,  and  is  a  transfer  of  the  property  for  their  use,  from  the  time 
of  acceptance.  If,  therefore,  a.  fi  fee,  which  is  issued  after  the  acceptance, 
but  before  the  execution  of  a  release  by  any  creditor,  be  levied  upon  the 
goods  assigned,  the  sheriff  is  a  trespasser. — Lippencott  v.  Barker,  2  Binn., 
174.     See  also,  on  this  subject.  Wilt  v.  Franklin,  1  Binney,  502. 

The  terms  imder  which  the  preference  of  creditors,  is  to  be  received, 
are  prescribed  by  the  assignor,  in  his  deed  of  assignment ;  and  a  compli- 
ance with  them  on  the  part  of  the  creditors  who  are  to  have  the  benefit  of 
preference,  is  required.  This  seems  to  be  the  established  rule  in  this 
country  both  at  law  and  in  equity. —  Wilt  v.  Franklin,  1  Binn.  Rep.,  514. 
Hower  v.  Geesaman,  17  Serg.  <^'  Rawle,  250.  Lippincott  v.  Barker,  2  Bin- 
ney's  Rep.,  286.  United  States  v.  King,  Wallace's  Penn.  Rep. ,21-  Har- 
mon V.  Reese,  1  Browne''s  Penn.  Rep.,  11.  Stoddard  v.  Allen,  1  RawWs 
Rep.,  258.  Halsey  v.  Whitney,  Mason's  Rep.,  206.  Mackie  v.  Cairnes,  1 
Hopkins'  N.  Y.  Ch.  Rep.,  373.  Canal  Bank  v.  Coxe,  6  Greenleaf,  395. 
Brinley  v.  Spring,  7  Greenlf.,  241.  Haven  v.  Richardson,  5  New  Hamp. 
Rep.,  113.  Buffum  v.  Greene,  Ih.,  71.  Brewer  v.  Pitkin,  11  Pick.  Rep., 
829.  Williams  v.  Browne,  4  Johns.  Ch.  Rep.,  682.  McDermot  v.  Strong, 
Ibid,  687.  Wood  v.  Owings,  1  Cranch,  239.  Catlin  v.  Eagle  Bank,  6 
Conn.  Rep.,  233.  Hendricks  v.  Robin.wn,  2  Johns.  Ch.  R.,  283.  Phanix 
V.  Ingraham,  5  Johns.  Rep.,  412.  Wilkes  v.  Ferris,  lb.,  335.  Jackson  v. 
Brownell,  3  Caines'  Rep.,  222.  McMeno7ny  v.  Ferrers,  3  Johns.  Rep.,  71. 
Marbury  v.  Brookes,  7  Wheat.  R.,  365.  1 1  lb.,  78.  Spring  v.  Insurance 
Co.,  8  lb.,  268.  Burd  v.  Smith,  4  Dallas,  76.  Brashear  v.  West,  7  Pe- 
ters' Rep.,  608. 

Where  an  assignment  is  made  to  two,  and  one  accepts,  and  the  other 
refuses  the  trust,  the  assignment  is  operative  as  to  the  assenting  trustee, 
unless  there  be  a  condition  that  it  shall  be  void,  if  both  trustees  do  not  as- 
sent.—  Gordon  v.  Coolidge,  1  Sumner,  537.     The  debtor  may  deprive  the 


48  ASSIGNMENT. 

creditor  who  refuses  to  accede  to  his  terms  of  his  preference,  and  post- 
pone him  to  all  other  creditors  ;  but  in  such  case,  the  creditor,  if  there 
should  any  property  remain,  after  all  the  other  creditors  who  released  and 
complied  with  the  condition  of  the  assignment,  are  satisfied,  will  hold  it 
subject  to  the  satisfaction  of  his  debt.  If  the  condition  of  the  assignment 
be,  that  the  share  which  would  otherwise  belong  to  the  creditor  who  should 
come  in,  and  accede  to  the  terms  and  release,  shall,  on  his  refusal  or  de- 
fault, be  paid  back  to  the  debtor,  and  placed  at  his  disposal  by  the  trustees, 
it  will  destroy  the  validity  of  the  assignment,  at  least  against  the  dissent- 
ing creditors.  —  Ames  v.  Blunt,  b  Paige,  16 — 18.  Graves  v.  Ray,  13  Lou- 
isianna  Rep.,  457.  The  Brig  Watchman,  Ware^s  Rep.,  .?32.  McAllister 
V.  Marshall,  6  Binn.  Rep.,  338.  Hi/slop  v.  Clarke,  14  Johns.  Rep.,  458. 
Searing  v.  Brinkerhoff,  5  Johns.  Rep.,  329.  Austin  v.  Bell,  20  Johns.  R., 
442.  Borden  v.  Sumner,  4  Pickering^s  R.,  265.  Ingraham  v.  Wheeler,  6 
Conn.  Rep.,  277.  Atkinson  v.  Jordan,  5  Ham.  Ohio  Rep.,  294.  Lentil- 
hou  V.  Moffat,  1  Edw.  Ch.  Rep.,  451.  And  see,  Brashear  v.  West,  7  Pe- 
ters' U.  S.  Rep.,  608. 

Hitherto  it  has  been  supposed,  that  the  debtor  in  an  assignment  might 
make  a  reservation  of  a  part  of  his  property  or  income,  for  his  own  bene- 
fit, at  the  expense  of  his  creditors,  if  not  made  intentionally  to  delay,  hin- 
der, or  defraud  creditors  ;  and  several  cases  have  occurred  favoring  the 
supposition.  —  Estwick  v.  Cailland,  5  Term  Rep.,  420.  Austin  v.  Bell,  20 
Johns.  Rep.,  442.  Riggs  v.  Murray,  2  Johns.  Ch.  Rep.,  580.  Murray  v. 
Riggs,  15  Johns.  Rep.,  571.  But  later  decisions  have  given  to  such  res- 
ervations the  more  decided  effect  of  rendering  fraudulent  and  void  the 
whole  assignment. — Passmore  v.  Eldridge,  12  Serg.  6f  Rawle,  198.  Gall 
v.  Dibrell,  10  Yerger,  146.  Mackie  v.  Cairnes,  1  IJopkins.  Rep.,  373.  5 
Cowen's  Rep.,  547.  Harris  v.  Sumner,  2  Pick.  Rep.,  129.  Chatress  v. 
Cairnes,  5  Cowp.  Rep.,  578.  Where  by  the  conditions  of  the  assignment 
the  creditors  are  to  come  in  and  release  the  debtor,  much  will  depend  on 
circumstances  as  to  the  time  of  the  period  of  limitation  ;  but  if  the  time 
be  unreasonable,  the  deed  is  considered  fraudulent. — Pierpont  tSf  Lord  v. 
Graham,  4  Wash.  C.  C.  Rep.,  232.  Wharl07i's  Digest,  tit.  Deed,  n.  70. 
Wilson  V.  Knepley,  10  Serg.  cf  Rawlc,  439.  Halsey  v.  Whitney,  4  Ma- 
son's Rep.,  206.  De  Caters  v.  Le  Roy  de  Chaumont,  2  Paige's  Rep.,  491. 
The  Canal  Bank  v.  Cox,  6  Greenleaf's  Rep.,  395.  The  King  v,  Watson, 
3  Price's  Rep.,  6.  Lippcncott  v.  Barker,  2  Binn.  Rep.,  174.  Cheever  v, 
Clark,  7  Serg.  6^  Rawlc,  510.  Scott  v.  Morris,  9  Ibid,  123.  Burd  v. 
Smith,  4  Dall.  76. 

Or,  it  is  at  least,  liable  to  objection,  if  the  time  be  unreasonably  ex- 
tended, and  the  adjustment  of  the  business,  and  the  claims  of  the  creditors, 
thereby  unnecessarily  delayed.  — Per  Story  J.,  in  Halsey  v.  Whitney,  4 
Mason's  Rep.,  206.  And  Per  Washington  J.,  in  Pierpont  v.  Graham,  4 
Wash.  Rep.,  232.     See  also,  Brinlay  v.  Spring,  7  Greene,  241. 

So,  if  the  assignees  delay  unreasonably,  to  sell  the  property  assigned, 
this  may  be  evidence  of  fraud,  and  the  property  may  be  attached  or  seized 
iri  execution  as  the  debtor's.  — Gore  v.  Cli.shy,  8  Pick.,  559. 

Good  faith  is  an  es.sential  ingredient  in  an  assignment.  A  court  of 
equity  requires  the  most  scrupulous  good  faith  in  transactions  of  this,  as 
well  as  of  every  oilier  kind  ;  it  art.s  upon  conscience,  and  does  not  content 


ASSIGNMENT.  49 

itself  with  the  narrower  views  of  legal  remedial  justice.  — 1  Eqxiity  Abr., 
148,  E.  3  Starkie  on  Evid  ,  Pt.  4,  p.  615  to  622.  Twyne's  Case,  3  Co. 
R.,  60.  Cases  have  repeatedly  been  decided,  in  which  persons  have 
given  a  full  and  fair  price  for  goods  and  other  property,  and  where  the  pos- 
session has  been  actually  changed  ;  yet,  being  done  for  the  purpose  of 
defeating  creditors,  the  transaction  has  been  held  fraudulent,  and  therefore 
set  aside.  If  a  n)an  should  know  of  a  judgment  and  execution,  and  with 
a  view  to  defeat  it,  should  purchase  the  debtor's  goods,  it  would  be  void, 
because  the  parties  did  not  act  in  good  faith.  —  Harrison  v.  Trustees  of 
Philips'  Academy,  12  Mass.  R.,  456.  Cadegon  v.  Rennet,  Comperes  Rep., 
434.  Brige  v.  Eggleston,  14  Mass.  Rep.,  245.  Warsely  v.  De  Mattos,  1 
Burr.,  474,  475.  But  cases  of  this  sort  are  carefully  to  be  distinguished 
from  others,  where  a  sale,  or  assignment,  or  other  conveyance,  merely 
amounts  to  giving  a  preference  in  payment  to  another  creditor,  or  where 
the  assignment  or  conveyance  is  made  for  the  benefit  of  all  creditors,  for 
such  a  preference,  or  such  a  general  assignment  or  conveyance,  is  not 
treated  as  mala  fide,  but  as  merely  doing  what  the  law  admits  to  be  right- 
ful. A  sale,  assignment,  or  other  conveyance,  is  not  necessarily  fraudu- 
lent, because  it  may  operate  to  the  prejudice  of  a  particular  creditor.  — 1 
Story''s  Equity  Jurispru.,  p.  344.  Holbird  v.  Anderson,  5  Term  Rep.,  235, 
Pickstock  v.  Lyster,  'i  M.  <^  Sclw.  Rep.,  371. 


RELEASE. 

With  regard  to  the  right  of  a  debtor  to  stipulate  in  an  assignment  for 
a  release  from  his  creditors,  as  the  condition  of  yielding  up  all  his  prop- 
erty for  their  use  and  benefit,  has  been  held  valid,  even  against  the  crown, 
by  the  court  of  exchequer. — Rex  v.  Watson,  3  Price's  Rep.,  6.  And  see 
also,  Johnson  v.  Baker,  4  B.  <Sf  Aid.,  479.  Spoonerv.  Whtston,S  Moore's 
Rep.,  580.  Holmer  v.  Love,  2  B.  Sf  Cress.,  64.  In  Jackson  v.  Lomas,  4 
Term  Rep.,  166,  there  was  a  proviso  to  the  assignment,  that  in  case  any 
creditor  should  not  execute  the  trust  deed,  which  contained,  among  other 
things,  a  release  of  the  debts,  by  a  given  day,  he  should  not  be  entitled  to 
the  benefit  of  the  trust  deed,  and  his  share  ivas  to  be  paid  back  to  the  debtor. 
"  It  seems,"  (says  Mr.  Chancellor  Kent  in  his  Commentaries  on  American 
Law,  vol.  2,  p.  534,)  "to  have  been  assumed  throughout  that  case,  that 
such  a  provision  would  not  alTect  the  validity  of  the  assignment."  In 
America,  considerable  discussion  has  hitherto  taken  place  on  this  point, 
but  the  weight  of  authority  seems  on  the  side  of  the  English  decisions  ; 
and  it  is  probably  now  settled,  that  stipulating  for  a  release,  is  not  deemed 
fraudulent  or  inequitable.  — See,  on  this  subject,  2  Story's  Equity  Jurispru- 
dence, p.  302.  Scott  V.  Morris,  9  Serg.  <Sf  Rawle,  123.  Wilson  v.  Knep- 
ley,  10  Ibid,  439.  Ilalsey  v.  Whitney,  4  Mason's  Rep.,  206.  De  Caters 
V.  Le  Ray  de  Chaumont,  2  Paige's  Rep.,  491.  The  Canal  Bank  v.  Cox,  6 
Greenlf.,  395.  Lippencott  v.  Barker,  2  Binney's  R'p.,  174.  Cheever  v. 
Clarke,  7  Serg.  <^  Rawle,  510. 
7 


50  ASSIGNMENT. 


SURETIES,  &c. 


A  debtor,  in  failing  circumstances,  may  also  prefer  sureties,  as  well 
as  particular  creditors.  This  rule  is  justified  by  practice,  and  authorized 
by  law. — Stevens  v.  Bell,  6  Mass.  Rep.,  339.  Gushing  v.  Gore,  15  Ibid, 
69.  Widgenj  v.  Haskell,  5  Ibid,  144.  Hatch  v.  Smith,  5  Ibid,  42.  Stod- 
dard V.  Allen,  1  Rawle's  Rep,,  258.      Canal  Bank  v.  Cox,  6  Greenlf.,  395. 

In  New  York,  the  Revised  Statutes  of  that  state  have  imposed  a  par- 
tial restriction  upon  the  common  law  right  of  appropriating  funds  to  the 
payment  of  what  are  deemed  honorary  engagements,  in  preference  tooth- 
ers, by  depriving  an  insolvent  debtor,  who  attempts  to  exercise  that  right, 
of  the  benefit  of  the  insolvent  laws.  But  if  the  debtor  be  willing  to  sub- 
ject himself  to  this  disability,  by  giving  a  preference  of  payment  to  one 
creditor,  in  exclusion  of  others,  it  is  valid,  as  against  the  other  creditors. 
—  Egbert  V.  Woods,  3  Paige's  Ch.  Rep.,  507. 

It  is  not  alone  for  the  payment  of  actual  debts,  and  the  security  of 
existing  liabilities,  that  a  preference  may  be  given.  An  assignment,  hon- 
estly made,  is  not  bad,  though  made  to  secure  against  future,  as  well  as 
present  responsibilities.  It  is  altogether  a  question  of  intention,  and  if 
that  be  free  from  fraud,  the  assignment  is  v^XiA.  — Hendricks  v.  Robinson,^ 
Johns.  Ch.  Rep.,  302.  United  States  v.  Hove,  3  Crunch,  73.  Spirras  v. 
Caig,  7  Cranch,  34.  See  also,  Jones  v.  Smith,  2  Ves.  Junr.,  372.  De- 
mainbray  v.  Metcalf,  2  Vernon,  698.      Green  v.  Farmer,  4  Burr.,  2214. 


*        RIGHT  OF  DEBTOR  TO  MAKE  AN  ASSIGNMENT. 

The  general  power  of  the  debtor  to  assign  property  in  trust  in  behalf, 
and  for  the  benefit  of  creditors,  has  been,  in  America,  fully  recognised  and 
approved,  not  only  by  the  Supreme  Court  of  the  United  States,  but  by  the 
state  courts. — See  opinion  of  /.  Story  in  Halsey  v.  Whitney,  4  Mason's 
Rep.,  206,  and  Marbury  v.  Brooks,  7  Wheat.  Rep.,  556.  1 1  76.,  78.  The 
Supreme  Court  of  the  United  States,  in  Brashear  v.  West,  7  Peters^  Rep., 
608,  decided  that  a  general  assignment  of  all  a  man's  property,  is  not  per 
se  fraudulent ;  and  that  the  right  to  make  it,  results  from  the  absolute  own- 
ership which  every  man  claims  over  that  which  is  his  own. 

A  conveyance  in  trust,  to  pay  debts,  says  Mr.  Chancellor  Kent,  is  a 
valid  conveyance,  founded  on  a  good  consideration. — Diex  v.  Dunham,  2 
Johns.  Ch.  R.,  182.  And  this  doctrine  is  in  perfect  accordance  with  the 
ancient  and  modern  decisions  in  England. — Stephenson  v.  Hayward,  Prec. 
in  Chancery,  310.  Pickstock  v.  Lyster,  3  Maule  <^  Selw.,  371.  Munn  v, 
Wrllsmore,  8  T.  R.,  528.  Meux  v.  Howell,  4  East's  Rep.,  1.  Estwick  v. 
Calliard,  5  T.  R.,  420. 

The  United  States  have  the  exclusive  privilege  of  being  preferred, 
as  creditors  to  private  citizens,  and  even  to  the  state  authorities,  in  all 
cases  of  the  insolvency  or  bankriiplcv  of  their  debtor.  But  no  lien  is 
created  by  the  statutes  giving  the  preference.  No  bona  fide  transfer  of 
property  in  the  ordinary  course  of  business  is  overreached.  It  is  only  a 
priority  of  payment,  which  under  diflerent  modifications,  was  a  regulation 


ASSIGNMENT.  51 

in  common  use,  and  a  bonajide  alieniation  of  property,  before  the  right  of 
priority  attached,  was  admitted  to  be  good. — Act  of  Congress,  July  31, 
1789,  sec.  21.  Aug.  4th,  1790,  ck.  35,  sec.  45.  May  2d,  1792.  March 
3d,  1797,  ch.  74,  sec.  5.  March  2d,  1799,  ch.  128,  ^  65.  Prince  v  Bart- 
lett,  8  Cranch,  431.  Thelluson  v.  Smith,  2  Wheat.,  399.  Canard  v.  TAe 
Atlantic  Ins.  Co.,  1  Peters^  U.  S.  Rep.,  386.  IFa^Ami-  v.  Otis,  2  PicA, 
102.  Harris  v.  Dente,  3  Pe^er^'  U.  S.  Rep.,292.  1  ZewiV  Com.,  243. 
United  States  v.  Fisher,  2  Cranch,  358.  United  States  v.  Hooe,  3  76i(f, 
73.  United  States  v.  Clarke,  1  Paine^s  Rep.,  629.  United  States  v. 
Munroe,  5  Mason,  572.  United  States  v.  Hawkins,  16  Martinis  Louis. 
Rep.,  317.     Harrison  v.  Sterry,  5  Cranch,  289, 


DECISION  OF  THE  SUPREME,  CIRCUIT  AND  DISTRICT 
COURTS  OF  THE  UNITED  STATES. 

1.  Has  not  an  insolvent  debtor,  a  right  to  prefer  one  creditor  to  another 
in  payment  by  an  assignment  ? 

He  has  if  made  bona  fide  and  no  subsequent  attachment,  or  subse- 
quent acquired  lien,  will  avoid  such  assignment.  And  such  assignment 
may  include  choses  in  action  as  a  policy  of  insurance,  &c.  Nor  is  it  ne- 
cessary that  such  an  assignment  should  be  accompanied  by  an  actual  de- 
livery of  the  policy.  So  also  an  assignment  is  good  against  a  subsequent 
attachment  although  the  creditors  were  not  originally  parties  to  the  as- 
signment, if  they  have  in  fact  assented  thereto  before  the  attachment. 
And  the  assignment  is  valid  if  the  creditor  have  actually  received  the 
benefit  of  it.  And  it  is  no  objection  to  such  an  assignment,  that  it  defeats 
all  other  creditors  of  their  legal  remedies  ;  even  if  amounting  to  a  ma- 
jority in  number  and  value  ;  unless  there  be  some  express  provision  of  a 
bankrupt  law  to  invalidate  the  deed.  It  is  not  fraud  upon  an  attaching 
creditor,  to  provide  for  the  payment  of  all  the  creditors,  in  preference  to 
one,  who  means  to  attach  by  process,  the  property  conveyed.  It  has 
never  been  alleged  in  the  United  States  that  a  general  assignment  of  all 
a  man's  property  for  the  benefit  of  his  creditors  is  per  se  fraudulent.  The 
right  to  make  it  results  from  the  absolute  ownership  which  every  man 
claims  over  that  which  is  his  own.  It  is  not  even  necessary  to  the  va- 
lidity of  a  deed  of  assignment  for  the  benefit  of  creditors,  that  creditors 
should  be  consulted  at  all. — Spring  et  al.  v.  South  Carolina  Insurance 
Co.,  8  Wheaton,  268.  5  Cond.  R.,  434.  Brown  v.  Minturn,  2  Gall.  C. 
C.  R.,  557.  Halsey  v.  Whitney,  4  Mason  C.  C.  Rep.,  206.  Brooks  v. 
Marburry,  11  Wheaton,  78.  6  Cond.  Rep.,  223.  Brashear  v.  West,  7 
Peters,  608. 

An  assignment  of  a  debtor  of  all  his  effects  for  the  benefit  of  such 
of  his  creditors  as  should  release  their  debts  in  sixty  days  from  the  date 
of  the  assignment,  where  there  was  no  fraud,  was  held  to  be  valid. — 
Pierpont  (^  Lord  v.  Graham,  4  Wash-  C.  C.  R.,  232. 

The  debtor  may  prefer  one  creditor,  pay  him  fully,  and  exhaust  his 
whole  property,  leaving  nothing  for  others  equally  meritorious.— C/arAe 
ei  al.  V.  White,  12  Peters,  178. 


52  ASSIGNMENT. 


PARTNERSHIP  PROPERTY. 

1.  What  is  the  rule  as  to   the  right  of  a  partner  to  assign   the  partner- 
ship effects,  for  the  benefit  of  creditors  ? 

The  rule  in  equity  is,  that  one  of  the  partners  may  assign  the  part- 
nership effects  in  the  name  of  the  firm,  for  the  payment  of  the  debts  of 
the  company,  although  by  such  assignment  preference  is  given  to  one  set 
of  creditors  over  awoiher.  — Egberts  v.  Wood,  3  Paige  Rep.,  523.  Pier- 
pont  V.  Graham,  4  Wash.  C.  C.  Rep.,  232.  Mills  v.  Barber,  4  Day's  R., 
428.  Harrison  v.  Sterry,  6  Cranch,  300.  White  v.  The  Union  Ins.  Co-, 
1  Nott  4-  McCord,  556.  Mills  v.  Argall,  6  Paige,  577.  An  assignment 
made  by  one  partner  of  goods  at  sea,  to  pay  a  bona  fide  partnership  debt, 
has  been  held  to  pass  the  property  in  the  goods  by  the  supreme  court  of 
Massachusetts. — Hodges  v.  Harris,  6  Pick.  R.,  360.  The  court  of  chan- 
cery in  the  state  of  South  Carolina  in  the  case  of  Dickens  v.  Legare,  1 
Dessaus.  Rep.,  537,  decided  against  the  validity  of  an  assignment  of  all 
the  partnership  effects  made  by  one  of  the  partners  to  pay  the  debt  of  a 
particular  creditor  without  the  knowledge  and  consent  of  the  other,  and 
the  decision  was  put  upon  the  general  ground  that  one  partner  had  not 
the  right  to  assign  the  partnership  funds  in  this  manner  without  the  con- 
sent of  his  co-partner.  But  the  assignment  was  made  under  very  pecu- 
liar circumstances  by  a  citizen  of  the  United  States  to  an  alien  enemy  in 
an  enemy's  country.  Let  us  enquire  how  the  assignor  came  in  the 
enemy's  country. 

The  company,  during  the  revolutionary  war,  were  doing  business  in 
this  country.  While  one  of  the  partners  was  on  a  voyage  to  France,  he 
was  taken  by  a  British  ship  of  war,  and  carried  as  a  prisoner  to  England. 
The  creditor  of  the  firm  resided  there,  and  prevailed  on  the  assignor  to 
pive  him  a  general  assignment  of  all  the  partnership  funds,  which  funds 
were  then  in  this  country,  to  secure  the  payment  of  his  particular  debt 
against  the  firm,  and  there  is  little  or  no  doubt  that  the  particular  circum- 
stances under  which  that  assignment  was  made,  had  considerable  influ- 
ence in  bringing  the  mind  of  the  chancellor  to  that  result.  But  the  deci- 
sion is  overruled  by  the  case  of  Robinson  v.  Crov)der,  4  McCord's  Ch. 
R.,  519. 

In  Anderson  et  al.  v.  Tompkins  ct  ah,  1  Brock  Rep.,  462.  ^larshall, 
J.,  Ch.  Justice,  "  a  merchant  may  rightfully  sell  to  his  creditor,  as  well  as 
for  money.  He  may  give  goods  in  payment  of  a  debt.  If  he  may  thus 
pay  a  siTiall  creditor,  he  may  thus  pay  a  large  one.  The  quantum  of  debt 
or  of  the  goods  sold,  cannot  alter  the  right.  Neither  does  it,  as  I  con- 
ceive, effect  the  power,  that  these  goods  were  conveyed  to  trustees  to  be 
sold  by  them.  The  mode  of  sale  must,  I  think,  depend  on  circumstances, 
should  goods  be  delive/ed  to  trustees  for  sale,  without  necessity, 
the  transaction  would  be  examined  with  scrutinizing  eyes,  and  might 
under  some  circumstances,  be  impeached.  But  if  the  necessity  be  ap- 
parent, if  the  act  is  justified  by  the  motives,  if  the  mode  of  sale  is  as  the 
circumstances  require,  I  cannot  say  that  the  partner  has  exceeded  his 
power. 

This  is  denominated  a  destruction  of  the  partnership  subject,  and  a 


ASSIGNMENT.  53 

dissolution  of  the  partnership.  But  how  is  it  a  destruction  of  the  sub- 
ject ?  Can  this  appellation  be  bestowed  on  the  application  of  the  joint 
properly  to  the  payment  of  the  joint  debts  ?  How  a  dissolution  of  the 
partnership  ?  A  partnership  is  an  association  to  carry  on  business  jointly. 
This  association  may  be  formed  for  the  future,  before  any  goods  are  ac- 
quired. It  may  continue  after  the  whole  of  a  particular  purchase  has 
been  sold,  but  either  had  a  right  to  dissolve  this  partnership.  The  act 
however  of  applying  means  of  carrying  on  this  business,  to  the  payment 
of  their  debts,  might  suspend  the  operations  of  the  company,  but  did  not 
dissolve  the  contract  under  which  their  operations  were  to  be  conducted. 


RIGHT  OF  DEBTOR  TO  PREFER  ONE  CREDITOR  TO 
ANOTHER. 

The  right  of  a  debtor  to  prefer  creditors  is  not  one  of  recent  origin. 
The  right  was  well  known  and  frequently  exercised  in  England  before 
the  time  of  Lord  Holt. — Hopkins  v.  Gray,  7  Mod.  Rep.,  139.  In  the 
year  1793,  the  court  of  king's  bench,  in  the  case  of  Holbird  v.  Anderson, 
5  T.  R.,  235,  decided  that  if  A,  indebted  to  B  and  C,  after  being  sued  to 
judgment  and  execution  by  B,  go  to  C  and  voluntary  give  him  a  warrant 
of  attorney  to  confess  judgment,  on  which  judgment  is  immediately  en- 
tered and  execution  levied,  and  the  same  day  on  which  B  would  have 
been  entitled  to  execution,  the  preference  so  given  by  A  to  C  is  not  frad- 
ulent  within  the  meaning  of  the  statute  13  Eliz.,  ch.  5.  And  in  East- 
wick  v.  Calliand,  5  T.  R.,  420,  the  court  of  king's  bench  in  the  same  year 
decided  to  the  same  effect.  The  question  raised  at  the  trial  was  whether 
the  deed  was  void  under  the  statute  of  13  Eliz.,  as  being  made  to  hinder, 
delay,  and  defraud  creditors.  The  court  considered  that  there  wa.s  no 
fraud  in  the  case  ;  and  Lord  Kenyon  said,  (and  the  other  judges  concur- 
red,) that  it  was  neither  illegal  nor  immoral  to  prefer  one  set  of  creditors 
to  another,  so  far  as  the  creditors  in  the  schedule  were  concerned,  the 
deed  was  deemed  good  ;  but  it  was  intimated  that  after  the  scheduled 
debts  were  satisfied,  equity  would  probably  direct  the  surplus  to  the  sat- 
isfaction of  the  other  creditors.  The  decisions  of  many  other  English 
cases  have  come  to  the  same  result,  of  which  the  following  are  a  few 
only. — Nunn  v.  Wilsmore,  8  T.  B.  521.  Benton  v.  Thnrnhill,  7  Taunt. 
Rep.,  149.  Goose  V.  Neale,  5  Moore's  R.,  19.  Rex  v.  Walson,  3  Price's 
R.,  6.    S?naU  V.  Oudley,  2  P.  Wms.,  427. 

In  the  case  of  Pickstock  v.  Lyster,  3  Maule  6f  Selw.,  371,  the  debtor 
was  insolvent  and  executed  an  assignment,  pending  the  suit  and  before 
execution  of  all  his  effects  to  trustees  for  the  benefit  of  all  the  creditors, 
under  which  possession  was  immediately  taken  ;  the  sole  object  of  the 
conveyance  was  to  prevent  a  judgment  creditor  from  obtaining  satisfaction 
out  of  the  property  on  execution.  The  assignment,  Lord  Ellenhorough, 
said,  was  to  be  referred  to  an  act  of  duty  rather  than  of  fraud,  observing 
that  it  arose  out  of  the  moral  duties  attached  to  the  creditor  from  debtor,  to 
make  the  fund  available  for  the  whole  body  of  his  creditors.  Mr.  J.  Baily 
fully  assented  to  the  doctrine,  and  remarked  that  the  conveyance,  so  far 


5i  ASSinXMEXT. 

from  being  frHuduleiit,  was  the  most  honest  act  the  party  could  do.  Nor 
was  there  anv  thing  new  in  this  doctrine.  — 3/fMX  v.  Hoivel,  4  East.  Rep., 
1.  Estwick  v.  Calliand,  5  T-  /v.,  420.  Holbird  v.  Anderson,  5  T.  Rep., 
235.      Munn  v.  Wilsmore,  8  T.  /iep.,  528. 


ASSIGiNMENT  IN  GENERAL. 

1 .  Does  not  an  assignment  act  per  se   as   an  equitable   transfer  of  the 
debt  ? 

It  does.— Story's  Conjlict  of  Laws,  p.  327,  328,  ^  395.  Notice  is 
indeed  indispensable  to  charge  the  debtor  with  the  duty  of  payment  to 
the  assignee,  so  that  if  without  notice,  he  pays  the  debt  to  the  assignor, 
or  it  is  recovered  by  process  against  him,  he  will  be  discharged  from  the 
debt.  But  an  arrest  or  attachment  of  the  debt  in  his  hands  by  any  credi- 
tor of  the  assignor,  will  not  entitle  such  creditor  to  a  priority  of  right,  if 
the  debtor  receives  notice  of  the  assignment,  pendenti  leti,  and  in  time  to 
avail  himself  of  it  in  discharge  of  the  suit  against  him.  — Dixv.  Cobb,  4 
Mass.  R.,  508.  Bohlen  v.  Cleveland,  5  Mason  R.,  174.  Holmes  v.  Rem- 
sen,  4  Johns.  Ch.  R.,  460.  486.  See  3  Burge  Comm.  on  Col.  and  For. 
Law,  Ft.  2,  ch.  20,  p.  Ill,  118.  Foster  v.  Sinkeer,  4  Mass.  Rep.,  450. 
Blake  v.  Williams,  13  Mass.  R.,  286.307.  308.314.  Woodv.  Partridge, 
]  1  Mass.  R.,  488.  Nor  will  a  prior  assignment  in  bankruptcy,  under  a 
foreign  law,  be  permitted  to  prevail  against  a  subsequent  attachment  by  an 
American  creditor  of  the  bankrupts  effects  found  in  the  United  States. — 
Fall  River  Iron  Works  v.  Croade,  15  Pick.,  11.  Fox  v.  Adams,  5  Green- 
leaf's  Rep  ,  245.  Oliver  v.  Townes,  14  Martin's  Louis.  Rep.,  93.  Norris 
V.  Mumford,  4  Id.,  20.  The  Brig  Watchman  in  the  District  Court  of 
Maine,  Wares  Rep.,  232.  Saunders  v.  Williams,  5  N.  Hamp.  Rep.,  213. 
Mitchell  V.  McMillan,  3  Martin's  Louis.  Rep.,  676.  Robinson  v.  Crowder, 
4  McCord's  Rep.,  519.  Blake  v.  Williams,  6  Id.,  286.  Taylor  v.  Geary, 
Kirby's  Rf-p.,  313.  Assignees  of  Topharn  v.  Chapman,  Const.  Rep.,  S. 
C,  283.  Ingraham  V.  Geyer,  \3  Mass.  Rnp.,  146.  Burk  v.  McLean,  I 
Har.  4"  McHen.,  236.  Milne  v.  Marton,  6  Binney's  Rep.,  353.  Mullikin 
V.  Aughinbauoh,  1  Pcnn.  Rep.,  117.  Ogden  v.  Gillingham,  1  Baldwin's 
Rep.,  C.  C.  U.  S.,  38.     McNeil  v.  Colguhoun,  2  Hayw.  Rep.,  24. 

True  the  question  has  been  frequently  discussed  in  our  American 
courts,  respecting  the  conflicting  claims  arising  under  our  attachment  laws 
and  under  a  foreign  bankrupt  assignment.  But  notwithstanding  the  Eng- 
lish decisions,  it  may  now  be  considered  as  part  of  the  settled  jurispru- 
dence of  this  country,  that  personal  property  as  against  creditors,  has 
locality,  and  lex  loci  rei  sitm  prevails  over  the  law  of  the  domicil  with  re- 
gard to  the  rule  of  preferences  in  the  case  of  insolvents  estate.  The  laws 
of  other  governments  have  no  force  beyond  their  territorial  limits;  and  if 
permitted  to  operate  in  other  states,  it  is  upon  a  principle  of  comity,  and 
only  when  neither  the  state  nor  its  citizens  would  suffer  any  inconvenience 
from  the  application  of  the  foreign  law.  —  Greenwood  v.  Curtiss,  6  Mas- 
sachusetts Reports,  378.  Oliver  v.  Townes,  14  Martin's  Louisiana  Rep., 
99-101. 


ASSIGNMENT.  55 

In  the  supreme  court  of  the  United  States,  the  court  admitted  the 
English  doctrine  on  this  point  to  be  well  established  in  England,  but  per- 
emptorily disclaimed  the  doctrine  in  the  opinion  delivered  on  behalf  of 
the  majority  of  the  court.  — Oo-c?e7i  v.  Saunders,  12  Wheat.,  213.  It  was 
the  recorded  doctrine  in  England,  according  to  the  opinion  of  counsel,  as 
early  as  1715,  that  the  English  creditors  of  an  insolvent  debtor  residing 
in  Holland,  could  attach  and  recover  by  execution  levied  on  his  effects  in 
England,  without  being  responsible  to  the  curator  in  Holland,  who  had  en- 
tered upon  his  trust  ^n'or  to  the  attachment  in  England.  — See  opinions  of 
R.  Raymond,  J.  Jekyll,  and  others,  in  the  Appendix,  254 — 25(3,  of  Mr. 
Henry^s  Treatise  on  Foreign  Law,  in  Blake  v.  Williams,  6  Pick.  Rep.,  286. 
Lord  V.  The  Brig  Watchman,  in  the  District  Court  of  Maine,  Ware's  Rep., 
232.  In  Abraham  v.  Plestora,  3  WendelVs  Rep.,  538,  the  question  was 
again  discussed,  and  the  decisions  made  in  entire  conformity  with  the 
general  doctrine  now  prevalent  in  the  United  States.  The  authorities  for 
the  contrary,  and  more  liberal  doctrine,  in  the  English,  Scottish,  and  Irish 
courts,  are  collected  in  BeWs  Commentaries,  vol.  2,  p.  681—687,  as  well 
as  in  the  case  of  Holmes  v.  Remsen,  20  Johns.  Rep.,  405.  The  law  on 
this  subject  of  the  effect  to  be  given  to  foreign  assignments,  is  examined, 
and  all  the  authorities  and  arguments  pro  and  con,  collected  and  reviewed 
in  Story's  Commentaries  on  the  Conflict  of  Laws,  p.  336  —  357. 


HOW  FAR  THE  INTEREST  OF  THE  ASSIGNEE  WILL  BE 
PROTECTED  AT  LAW,  &c. 

1.  Can  a  debtor  avoid  an  assignee's  claim  by  paying  the  assignor  after 
notice  ? 

He  cannot ;  nor  by  showing  a  release  from  the  assignor.  Nor  can 
the  debtor  set-off  any  demands  against  the  assignee,  which  accrued  after 
notice  of  the  assignment.  Nor  where  the  debtor's  conduct  is  such,  as  in 
equity  to  deprive  him  of  the  right  of  set-off  against  the  assignee.  Nor  if 
he  promise  to  pay  the  assignee,  without  stipulating  for  the  deduction  of 
his  counter  claim.  Nor  a  demand  which  existed  before,  and  at  the  time 
of  assignment,  if  he  knew  from  the  assignee  or  his  agent,  that  an  assign- 
ment was  to  be  made,  and  gave  no  notice  of  his  counter  demand.  Nor 
can  a  plaintiff  discontinue  his  action  after  a  bona  fde  assignment  of  the 
debt,  for  valuable  consideration,  to  another  person.  Nor  can  he,  by  a  col- 
lusive dismissal  of  the  suit,  bar  a  future  action  for  the  same  cause.  —  Sweet 
v.  Greene,  4  Greenlf,  384.  Holland  v.  Dale,  Minor,  265.  Stevens  v,  Ste- 
vens, 1  Ashm.,  190.  Jones  V.  Witter,  \'i  Mass.,  307.  Jenkins  v.  Brewster, 
14  Mass.  R.,  291.  Littlefieldv.  Story,  3  Johns.  425.  Clarke  v.  Rogers,  2 
Greenlf.,  143.  Wheeler  v.  Wheeler,  9  Cow.,  34.  Cowan  v.  Shields,  1 
Overt.,  314.  Dunne  v.  Snell,  15  Mass.  R.,  485.  Raymond  v.  Squire,  11 
Johns.  47.  Andrews  v.  Becker,  1  Johns.  Cas.,  411.  Strong  v.  Strong,  2 
Aik.,  373.  Eastmanv.  Wright,  6  Pick.,  316.  Goodwin  v.  Cunningham^ 
12  Mass.,  193.  Kemp  v.  McPherson,  7  Har.  <Sf  J.,  320.  Lane  v.  Win- 
thorp,!  Bay.,  116.  S.  P.  Mayo  V.  Giles,  \  Mumf,  533.  Cabinness  v. 
Herndon,  6  Litt.,  4:69.     Henry  v.  Browne,   19   Johns.,  49.     McMullen  v. 


56  ASSIGNMENT. 

Werner,  16  S.  <Sj-  R.,  18.      King  v.  Fowler,  16  Mass.,  397.      McCullam  v. 
Coxe,  1  Da//.,  139.      Welsh  v.  Mandeville,  1   TF/<ea/?.,  236.     A  special  no- 
tice of  the  assignment  is  not  necessary  ;  all  the  law  requires  is   that  the 
party  should  have  such  knowledge  of  facts  and  circumstances  as  is  suffi- 
cient to  put  him  on  enquiry.  —  Kellogg  v.  Krauser,  14  S.  <^  R.,  137.     An- 
derson V.  Van  Allen,  12   Johns.,  343-      United  States   v.    Sturgcs,  Paine, 
525.      United  States  v.  Clark,  Ibid,  629.     If  the  assignee  give  the  debtor 
notice,  without  exhibiting  the   security,  or  offering   other   evidence,  it  is 
sufficient.  —  Davenport  v.   Woodbridge,  8  Greenlf.,  17.      When  the  assign- 
ment is  bonajide,  and  for  a  valuable  consideration,  the  law  will  protect  an 
assignee's  equitable  interest  in  a  chose  in  action,  against  all  persons  having 
notice  of  the  trust  or  assignment.  —  Littlejieldv.  Story,  3  Johns.  Rep.,  425. 
Johnson  v.  Bloodgoud,  1  Johns.  Cos.,  51.      Wardell  v.  Eden,  2  Johns.  Cos., 
121.     Henrj/  v.  Milham,  1  Greenlf.,  266.     Jones  v.  Witter,  13  Mass. ,20^. 
Perkins  V.  Barker,  1  Mass.,  117.     Boylstonv.  Gree7ie,8  Alass.,  466.     Cor- 
serv.  Craig,  1   Wash.   C.   C,  424.    'Skcfftalv.  Clay,  Charlt.,  230.     An- 
derson V.  Van  Allen,  12  Johns.  343.      Bnggsv.  Dorr,  19  Johns.,  95.     Van 
Vechten  v.  Graves,  4  Johns.,  403.  So  strongly  are  courts  of  equity  inclined 
to  uphold  assignments,  when  bonajide  made,  that  even  the  assignment  of 
freight,  to   be  earned   in  future,  is  good  in  equity  ;  and  will   be   enforced 
against  the  party  from  whom  it  becomes  due.  —  2  Story'' s  Equity  Jurispru- 
dence, p.  317.     Leslie  v.  Guthrice,  1    Bing.   New  Cas.,  697.     Douglass  v. 
Russell,  4  Sim.   Rep.,  524.     S.  C.  1    Mylne  <^  Keene,  488.     In  Re  ship 
Warre,  8  Price  R.,  269.      Curtis  v.    Aubor,  1    Jac.    Sj-  Walk.,  507.     The 
assignment  of  a  debt,  does  not,  in  equity,  require  even  the  assent,  in  any 
manner,  of  the  debtor  thereto  ;  although  to  make  it  effectual  for  all  purpo- 
ses, it  may  be  important  to  give  notice  of  the  assignment  to  him  ;  since, 
until  notice,  he  is  not  affected  with  the  trust  created  thereby,  and  the  rights 
of  third  persons  may  intervene  to  tl»e  prejudice  of  the  assignee.  —  Spring 
V.  South  Carolina  Ins.  Co.,  8  Wheat.  R.,  268,   282.     Ex  parte   South,  3 
Swanst.  R.,  393.      Lovcridge  v.  Cooper,  3  Russ.,  30.      Wallwynv.  Coutis, 
3  Meriv.  R.,  707.     3  Sim.,  14.      Collycrv.  Fallon,  1  Turn,  dy  Russ.,  469. 
Fastor  V.  Blackstone,  1  Mylne  <Sf  Kecne,  297.      Garrard  v.  Lord  Landerdale, 
3  Sim.  R.,  \.      Williams  v.  Thorp,  2   Simon's  R.,257.      Tourville  v.  Na- 
ish,  3  p.  Will.,  307,  308.     Langley  v.   Earl  of  Oxford,  Ambler  Rep.,  17. 
AshcomVs  Case,  1  Ch.  Cas.,  232.     Dearie  v.  Hall,  3  Russ.  R.,  1.      Foster 
V.  Sinkler,  4  Mass.  R..  450.     Blake  v.  Williams,  13  Mass.  R.,  286,  307, 
308,  314.      Wood  V.  Partridge,  11  Mass.  R.,  488.     Dix  v.  Cobb,  4  Mass. 
R.,  508.     Bohlen  v.  Cleveland,  5  Mason's  R.,  174-      Holmes  v.  Rcmsen.  4 
Johns.  Ch.  R.,  460,  486.     3  Burge  Com.  on  Col.  and  For.  Law,  Pt.  2,  ch. 
20,  p.  777,  778.     A  plaintiff  who  has  assigned  his  interest  in  a  chose  in 
action  before  suit,  cannot  be  a  witness  for  the  defendant,  as  to  his  demands, 
so  as  to   impair  the   assignee's   rights.  —  Camty  v.    SHmpter,2   Bay.,  93. 
Hackett  v.  Martin,  8  Greenlf.,  11.     Frcar  v.  Evertson,  20  Johns.,  142. 

One  who  procures  an  assignment  to  be  made,  and  participates  in  the 
benefit  thereof,  will  not  be  permitted  to  defeat  it  by  levying  an  execution 
on  the  assigned  property. —  Gray  v.  Bell,  4  Watts,  4\0.  A  person  who 
sues  an  assigned  demand,  in  the  assignor's  name,  is  not  liable  to  an  action 
by  the  defendant  for  the  costs,  though  judgment  is  rendered  for  the  defen- 
dant.—Zienne/i  v.  McFall,  2  Rep.  Con.  Ct.,  198.     2  Const.  Rep.,  769.      A 


ASSIGNMENT.  57 

court  of  chancery  will  judiciously  notice  the  fact  lliat  courts  of  law  protect 
the  rishts  of  assignees  suing  in  the  name  of  their  assignor. —  Svulh<saLe 
V.  Montgomery,  1  Paige,  41. 


HOW  MAY  BE  MADE,  EFFECT  OF,  &c. 

1.  Suppose  a  debtor  executes  three  several  notes  to  a  creditor,  and  gives 
a  deed  of  trust  to  secure  the  payment,  and  when  the  first  note  falls  due  it 
is  paid  ;  the  second  note  is  assigned  to  another  person,  without  assigning 
the  deed  of  trust;  the  third  note  is  assigned  to  another  person,  with  the 
deed  of  trust,  which,  in  such  case,  is  entitled  to  the  first  satisfaction  out 
of  the  trust  fund  1 

The  assignee  of  the  second  note  is  entitled  to  the  first  satisfaction 
out  of  the  trust  fund. —  Wright  v.  Parker,  2  Aik.  Rep.,  212-  Gwathmeys 
V.  Raglarid,  1  Rand.,  4G6.  Where  a  mortgage  is  given  to  secure  a  note 
payable  to  order,  an  assignment  of  the  note  will  carry  with  it  the  mort- 
gage also,  without  any  assignment  on  the  mortgage.—  Green  v.  Hurt,  3 
Johns-  Cos.,  392.  Hache  v.  White,  2  Gall.  Rep.,  155.  An  assignment  of 
a  particular  claim  passes  to  the  assignee  all  remedies  and  liabilities  which 
the  assignor  had  to  secure  and  recover  it,  though  they  are  not  specifically 
mentioned  in  the  assignment.  —  Mehaffy  v.  Share,  2  Pennsyl.,  361.  Mort- 
gages are  assignable  like  other  evidence  of  debt,  and  it  is  not  necessary  to 
constitute  a  valid  assignment,  that  they  should  be  in  writing,  to  satisfy 
either  the  requirements  of  the  statute  of  frauds  or  the  common  law.  So, 
debts  or  choses  in  action  may  be  assigned  for  a  valuable  consideration  by 
parol.  An  assignment  of  a  right  of  occupancy,  need  not  be  in  writing. 
A  judgment  may  be  assigned  by  parol  or  writing,  without  seal ;  so,  an  ob- 
ligation or  covenant,  may  be  assigned  by  an  unsealed  writing.  An  assign- 
ment of  a  contract  not  under  seal,  or  of  interests  not  evidenced  by  sealed 
instruments,  need  not  be  by  deed.— Graft  v.  Webster,  4  RawWs  R.,  242. 
Schuyktll  Co.  v.  Thornburn,!  Serg.  i^~  RawWs  Rep.,  419.  Simpson  v. 
Ammonds,  1  Binn.  R.,  175.  Wentz  v.  D.  Haven,  1  Sergt.  c^  RaioWs  R., 
317.  McCall  V.  Lenox,  9  Sergt.  (^  Rawle's  Rep.,  304.  Prcscott  v.  Hale, 
17  Johns.  Rep.,  285.  Briggs  v.  Dorr,  19  Johns.  Rep.,  95.  Southern 
et  al.  V.  Mendum,  5  New  Hampshire  Reports,  420.  Cutter  v.  Haven,  8 
Pickering's  Reports,  490.  Gray  v.  Jenks,  3  Mason's  Reports,  520.  Har- 
vey V.  VVillard,  5  N.  Hamp.  Rep.,  252.  Robbins  v.  Bacon.  3  Grednlf.  R., 
349.  Vase  v.  Handy,  2  Greenlf.,  322.  Onion  v.  Paul,  1  Har.  Sf  J.,  114. 
Cook  v.  Shute,  Cooke,  67.  Ford  v.  Stewart,  19  Johns.,  342.  See  Dawson 
V.  Coles,  16  Johns.,  51.  Howel  v.  Bulkley,  1  N.  ^  M,  250.  Quiner  v. 
Marblehead  Social  Insurance  Co.,  10  Mass-,A16.  The  delivery  of  an  exe- 
cution, note,  or  bill,  with  intent  to  transfer  the  debt,  on  a  fair  bargain,  upon 
valuable  consideration,  is  a  sufHcient  assignment.  —  Dunn  v.  Snell,  15  Mass., 
485.  Titcombe  v.  Thomas,  5  Greenlf.,  282.  Clarke  v.  Rogers,  2  Greenlf. 
Rep.,  147.  Jones  v.  Wilier,  13  Mass.,  304.  An  assignment  of  an  exe- 
cution does  not  enable  the  assignee  to  sue  in  his  own  name,  the  officer 
who  fails  to  collect  and  pay  over  the  money.  Nor  by  the  assignment  of  a 
judgment,  does  the  assignor's  right  to  recover   against  the  sheriff  for  ne- 


58  ASSIGNMENT. 

gleet  of  duty  before  the  assignment,  respecting  executions  that  had  issued 
on  the  judgment,  pass  to  the  assignee  ;  nor  is  such  right  extinguished  by 
the  assignment. — Jones  v.  Commo7iiceallh,  2  Lift.,  357.  Comuron  v.  Fu' 
gua,  3  Litt.,  41. 

The  general  principle,  that  a  specialty  must  be  assigned  by  an  instru- 
ment of  as  solemn  a  nature  as  the  instrument  assigned,  does  not  apply  to 
equitable  assigrmients. — Dunne  v.  Snell,  15  Mass.,  485. 

If  A.  receives  from  B.  an  order  on  his  agent  to  pay  A.  a  certain  sura 
out  of  such  debts  of  B.  as  shall  come  into  the  agent's  hands,  the  order, 
and  the  acceptance  of  it,  fix  the  funds  irrevocably,  and  constitute  an  assign- 
ment of  the  debts  to  such  extent  as  shall  be  necessary  to  satisfy  the  order. 
—  Peyton  V.  Hallett,  1  Caines,  363.  AIcNenomy  v.  Ferrers,  3  Johns.,  72. 
An  order,  draft,  or  bill  drawn  for  the  whole  of  a  particular  fund,  is  an  equi- 
table assignment  of  such  fund  to  the  payee,  and  binds  it  after  notice  to  the 
drawee.  Such  order,  though  not  expressed  to  be  for  value  received,  is, 
prima  facie,  an  assignment. —  Corstr  v.  Craig,  1  Wash.  C.  C,  424.  Man- 
deville  v.  Welsh,  5  Wheaton,  285.  Rohhins  v.  Bacon,  3  Greenleaf,  346. 
Adams  v.  Robinson,  1  Pick.,  461.  But  this  is  not  the  case  as  to  part  of  a 
fund,  unless  expressly  absented  to  by  the  drawee.  —  5  Wheat. ,2Sb.  Were 
it  not  so,  a  man  holding  a  fund  of  one  thousand  dollars  for  another,  might 
be  compelled  to  accept  one  thousand  drafts  to  different  persons,  and  sub- 
ject himself,  on  non-payment  thereof,  to  one  thousand  suits.  A  plaintiff 
cannot  split  up  an  entire  cause  of  action,  so  as  to  maintain  even  iwo  suits 
upon  it,  without  the  defendant's  consent.  If  he  attempt  so  to  do,  a  recov- 
ery in  the  first  suit,  though  for  less  than  his  whole  demand,  is  a  bar  to  all 
subsequent  suits  in  relation  to  the  same  matter. — Smith  v.  Jones,  15  Johns. ^ 
229.  Willard  v.  Sperry,  16  Johns.,  121.  Avery  v.  Fitch,  4  Conn.,  362. 
Vance  v.  Lancaster,  3  JIayw.,  130.  Colvin  v.  Corwin,  15  Wend.,  557. 
-S.  p.  Miles  V.  Covert,  1  Wcnd„487.  Stike''s  Case,  1  Bland.,  95.  Ingra- 
ham  V.  Hall,  W  S.  ^  R.,1S.      Cripps  v.  Talvenda,  4  McCord,  20. 

But  where  a  draft  or  order  is  drawn  on  a  debtor,  for  a  part  or  whole 
of  the  funds  of  the  drawer  in  his  hands,  such  a  draft  does  not  entitle  the 
holder  to  maintain  a  suit  at  law  against  the  drawee,  unless  the  latter  as- 
sents to  accept  or  pay  the  Axdiii.—Mandeville  v.  Welsh,  5  Wheat.  R.,  277, 
286.  Tierman  v.  Jackson,  5  Peters'  R.,  597  to  601.  Adams  v.  Claxton, 
6  7c;y.,  231. 

The  same  principle  will  apply  to  a  case  where  an  equitable,  (but  not 
"'a  legal,)  interest  in  specific  property,  in  the  hands  of  a  bailee  or  factor,  '\k 
intended  to  be  transferred  by  an  assignment  to  creditors,  or  where  specific 
property  is  remitted  on  consignment  for  sale,  with  directions  to  apply  the 
proceeds  to  the  payment  of  certain  specified  creditors.  In  each  of  these 
cases,  some  assent  to  the  appropriation,  express  or  implied,  by  the  bailee 
or  consignee,  must  be  established,  to  justify  a  recovery  at  law  by  the  cre- 
ditors.—  Bacon  V.  Husband,  4  B.  <^-  Adolph.,  611.  Williams  v.  Everett^ 
14  Ea.st,  582.  Yates  v.  Bell,  3  Barn,  c^-  Aid.,  64.  But  in  cases  of  this 
sort,  the  transaction  will  have  a  very  difl'erent  operation  in  equity.  Thus, 
for  instance,  if  A.,  having  a  debt  due  to  him  from  B.,  should  order  it  to  be 
paid  to  C,  the  order  would  amount  in  equity  to  an  assignment  of  the  debt, 
and  would  be  enforced  in  equity,  although  the  debtor  had  not  assented 
'.hereto.     The  same  principle  would  apply  to  the  case  of  an  assignment  of 


ASSIGNMENT.  59 

a  part  of  such  debt ;  in  each  case,  a  trust  would  be  created  in  favor  of  the 
equitable  assignee  on  the  fund,  and  would  constitute  an  equitable  lien  upon 
it'.  —  Tiernan  v.  Jackson,  5  Peters^  Rep.,  598.  Collyerx.  Fallon,  1  Turner 
<^  Russ.  Rep.,  470,  475,  476.  Adams  v.  Claxton,  6  Ves.,  230.  Row  v. 
Dawson,  1  Ves.,  331.  Priddy  v.  Rose,  3  Merivale,  85,  102.  Ex  parte 
South,  3  Swanst.,  393.  Xc/^  v.  Morris,  4  (SzVti.  i2ep.,  607.  i?a;  par^e 
Alderson,  1  ikfaJJ.  i^.,  53,  393.  Mandeville  v.  lFe/.yA,  5  Wheat.  R.,  277, 
286.  Smith  v.  Everett,  4  5ro.  C/jan.  Rep.,  64.  The  true  test,  says  Mr. 
Justice  Story,  (2  Story^s  Equity  Jurisp.,  p.  309,)  whether  an  absolute  ap- 
propriation is  made  or  not,  depends  upon  the  point,  at  whose  risk  the  pro- 
perty is  ;  and,  until  the  creditor  has  consented,  the  property  will  clearly  be 
at  the  risk  of  the  assignor  or  remitter. —  Williams  v.  Everett,  14  EasCs 
Rep.,  582.  Tierman  v.  Jackson,  5  Peters'  Rep.,  598.  See  also,  Walwyn 
V.  Coutts,  3  Meriv.  Rep.,  707.  3  Sim.  Rep.,  14.  Gerrard  v.  Lord  Lau- 
derdale, 4  Russ.  Rep.,  6.  Gaskill  v.  Gaskill,  2  Young  Sf  Jerv.,  502.  Ma- 
ber  V.  Hohbs,  2  Young  Sf  Coll.,  317,  327.  Scott  v.  Porcher,  3  Meriv.  R., 
662.  Acton  v.  IFooJ^a^e,  2  Mylne  6^  Keene,  492.  But,  if  upon  notice, 
the  creditors  should  assent  thereto,  and  no  intermediate  revocation  should 
have  been  made  by  the  assignor  or  remitter,  there,  in  equity,  the  assignee 
or  mandatory  will  be  held  a  trustee  for  the  creditors,  and  they  may  main- 
tain a  bill  to  enforce  a  due  performance  of  the  trust ;  for,  although  the 
assignee  or  mandatory  has  a  perfect  right  in  such  a  case,  to  refuse  the 
trust,  yet  he  cannot  act  under  the  mandate,  and  receive  the  proceeds,  and 
hold  them  discharged  from  the  trust  thus  created,  and  still  subsisting  be- 
tween the  mandator  and  the  creditors. — Yates  v.  Bell,  3  Barnwell  cj-  Aid., 
343.  The  property  comes  to  his  hands  clothed  with  the  trust,  by  the  act 
of  parties  competent  to  create  and  establish  it,  and  his  assent  is  in  no  just 
sense  necessary  to  give  validity  to  it  in  equity.  If,  at  the  time  of  such 
assignment  or  remittance,  the  very  arrangement  and  appropriation  of  the 
proceeds,  had  been  actually  made  between  the  assignor  or  remitter,  and 
the  creditor,  it  would  clearly  bind  the  proceeds  in  the  hands  of  the  as- 
signee or  mandatory  subject,  to  such  appropriation,  whether  he  assented 
to  it  or  not.  And  it  can  make  no  just  difference  that  the  arrangement  is 
subsequently  made  by  the  same  parties,  as  they  still  remain  competent  to 
enter  into  it. — Fitzgerald  v.  Steioart,  2  Sim.  Rep.,  333.  Watson  v.  Duke 
of  Wellington,  1  Russ.  df  Mylne  R.,  602.  Hassull  v.  Smithers,  12  Ves., 
119.     But  see  Ex  parte  Haywood,  2  Rose's  Rep.,  355, 

It  is  true,  that  in  every  case  where  a  consignment  or  remittance  is 
made,  with  orders  to  pay  over  the  proceeds  to  a  third  person,  the  appro- 
priation is  not  absolute  ;  for  it  amounts  to  no  more,  than  a  mandate  from  a 
principal  to  his  agent,  which  can  give  no  right  or  interest  to  a  third  per- 
son in  the  subject  of  the  mandate.  It  may  be  revoked  at  any  time  before 
it  is  executed,  or  at  least,  before  any  engagement  is  entered  into  by  the 
mandatory  with  the  third  person,  to  execute  it,  for  his  benefit,  and  it  will 
be  revoked  by  any  prior  disposition  of  the  property  inconsistent  with 
such  execution.  But  if  no  revocation  is  made  and  the  mandate  continues 
in  full  force,  the  trust  as  such,  continues  for  the  benefit  of  such  third  per- 
son, who  after  his  assent  thereto,  notified  to  the  mandatory,  may  avail 
himself  of  it  in  equity,  without  any  reference  to  the'assent  or  dissent  of 
the  mandatory,  upon  such  notice  ;  for  his  receipt  of  the  property  binds 


60  ASSIGNMEXT. 

liim  to  follow  the  orders  of  his  principal.  —  Acton  v.  Woodgate,  2  Mylne 
tj-  Keene,  492.  Scott  v.  Porcher,  3  Meriv.  Rep.,  6G2,  664.  Hassell  v. 
Smithers,  12  Ves.,  119,  122.  An  assignment  endorsed  on  a  note,  and 
the  note  retained  by  the  assignor  during  his  life,  and  found  among  his 
papers  after  his  death,  vests  no  interest  in  the  assignee.  —  C/ur/te  v.  Boyd, 
2  Ham.,  56.  A  mortgage  cannot  be  assigned,  by  mere  delivery  of  the 
deed,  so  as  to  pass  any  interest  in  the  land.  Nor  by  an  assignment  of  a 
bond  for  reconveyance,  given  to  the  grantor  by  the  grantee  —  which  con- 
stitutes a  mortgage.  The  assignment  must  be  by  deed.—  Warder  v. 
Adams,  15  Mass.,  236.  Porter  v.  Millet,  9  Mass.,  101.  Vose  v.  Handy, 
2  Greerd.,  322.  Den  v.  Dimon,  5  Halst.,  156.  If  a  stranger  gets  an  as- 
signment of  a  mortgage  for  less  than  is  due,  the  mortgagor  shall  not  re- 
deem without  paying  all  the  money  due  ;  but  if  a  man  purchases  the  mor- 
gaged  lands  without  notice  of  his  incumbrance  ;  whether  he  has  not  equity 
to  redeem  them  for  what  was  really  paid  by  the  stranger.  Query.  —  1 
Vernoyi's  Rep.,  336. 

The  assignee  of  a  mortgage  takes  it  subject  to  all  the  equities  which 
exist  between  the  mortgagor  and  mortgagee  at  the  time  of  the  assignment, 
but  not  subject  to  the  latent  equities  of  third  persons,  unless  the  assignees 
have  notice  of  these  equities.  —  James  v.  Morey,  2  Cow.  Rep.,  247.  U. 
States  V.  Sturges,  I  Paine's  Rep.,  525.  If  a  mortgagor  stands  by  and 
hears  a  treaty  between  the  mortgagee  and  a  third  person,  concerning  an 
assignment  for  a  certain  sum,  alleged  to  be  due,  he  shall  not,  after  the 
assignment,  contest  the  correctness  of  the  sum  stated  to  be  due. — Ballin- 
ger  V.  Worely,  1  Dibh.  Rep.,  195. 

The  assignment  of  a  judgment  for  a  debt  carries  the  debt,  and  if  the 
debt  be  secured  by  mortgage  it  carries  also  the  mortgage  interest.  So,  if 
the  assignment  be  of  only  part  of  the  judgment,  a  proportionate  interest 
in  the  mortgage  passes. — Pattison  v.  Hull,  9  Cow.,  747. 

By  the  law  of  Mississippi  the  assignee  of  a  chose  in  action  may  in- 
sMMitr-  a  suit  in  his  own  name.  Where,  therefore,  an  executor,  having 
proved  the  vVill  of  his  testator  in  Kentucky,  assigned  a  promissory 
note,  due  to  the  estate  by  a  citizen  of  Mississippi.  The  suit  was  well 
brought  by  the  assignee,  without  any  probate  of  the  will  in  that  state. — 
Harper  v.  Butler,  2  Pet.,  239.     De  France  v.  Davis,  Walker,  69. 

In  England  any  instrument  or  claim,  though  not  negotiable,  may  be 
assigned  to  the  king  who  can  sue  upon  it  in  his  own  name.  The  same 
effect  would  be  given  to  an  assignment  to  the  government  of  this  country. 

—  United  States  v.  Buford,  3  Pet.,  13. 

A  judgment  assigned  as  collateral  security  for  a  debt,  becomes  for 
all  purposes,  the  property  of  the  assignee,  and  is  under  his  exclusive  con- 
trol.— Beale  v.  The  Bank,  5    Watts,  529. 

Every  instrument  not  assignable  by  its  terms,  is  always  liable  to  be 
defeated  by  equitable  circumstances  subsisting  between  the  original  con- 
tracting parties,  being  taken  legally  subject  to  all  the  equity  of  the  origi- 
nal debtor.  It  may  not  be  amiss  here  to  remark  that  such  instrument 
should  be  taken  principally  on  the  credit  of  him  for  whom  it  is  received. 

—  Bank  of  Niagara  v.  McCracker,  18  Johns.,  493.  Murray  v.  Sylburn, 
2  Johns.  Ch.,  441.  Livingstone  v.  Deane,  Ibid,  479.  Winchester  r. 
Hacklcy,  2  Crunch,  342.      United  States  v.  Sturgiss,   Paine,  525.      Sharp 


ASSIGx\MENT.  61 

V.  Ecales,  5  Munr.,  72.  Harrison  v.  Burgiss,  Ibid,  420.  Kennedy  v. 
Woolford,  3  Hayw.,  199.  Hawley  v.  Cramer,  4  Cot/;.,  717.  Porter  v. 
Breckenridge,  Hardin,  21.  Brashcar  v.  West,  7  Pe^,  608.  iri7/j.s  v. 
Twambley,  13  iV/a5.?.,  206.  VKei^-^er  v.  M'^i.se,  1  Pat^e,  319.  Bacon  v. 
Warner,  1  iioo^,  349.  Chamberlain  v.  Gorham,  20  Johns.,  144.  Greene 
V.  Darling,  5  Mason,  215.  White  v.  Prentiss,  3  Monr.,  510.  Furman  v. 
Hadkin,  2  Johns.,  369. 

An  express  promise  by  the  debtor  to  pay  the  assignee,  will  warrant 
a  suit  in  the  assignee's  name,  founded  on  the  assignment  and  promise. — 
ilfoar  V.  W^n^A^  1  Fern.,  57.  Matheson  v.  Craig,  1  McCord,  219. 
Compton  V.  Jones,  4  Cow.,  13.  ian^  v.  Fiske,  2  Fairf.,  385.  Barger  v. 
Collins,  1  Har.  <Sj- J.,  213.  Courierv.Hogdon,3  N.Hainp.,  S2.  Crooker 
V.  Whitney,  10  iVfa;?^.,  316.  3Iou;/-y  v.  ToJJ,  12  Mas^.,  284.  Bucklin  v. 
Ward,  7  v  em.,  195.     Allstan  v.  Contee,  4  i^ar.  <^  /.,  351. 


ASSIGNMENTS  OF  BONDS  AND  LIABILITIES  OF  AS- 
SIGNORS ON  THEIR  ASSIGNMENTS. 

1.  Does  not  the  assignee  of  a  bond  take  it  at  his  own  peril  ? 

He  does,  and  can  be  compelled  to  let  in  every  defence,  which  the  ob- 
ligor had  against  the  obligee  at  ),he  time  of  the  assignment  or  notice  of  the 
assignment.  The  assignee  of  a  bond  is  not  in  a  better  situation  than  the 
assignor,  even  though  he  take  the  assignment  for  a  valuable  consideration 
and  without  notice.  —  Solomon  v.  Kimmell,  5  Binn.,  232  Burry  v.  Hart- 
?}ian,  4  S.  cj-  R.,  177.      Wheeler  v.  Hughes,  1  Dull.,  23.     Inglisv.  Inglis, 

2  Dall.,  49.  Rundle  v.  Etweinn,  2  Yeates,  23.  Stockton  v.  Cooke,  3 
Mumf.,  68.  i\^or-<on  v.  Rose,  2  Wa.s/«.,  233.  Pickett  v.  Morris,  lb.,  255. 
(Scoif  V.  Shreeve,  12  PFAeafon,  605. 

Whenever  a  bond  is  assigned,  and  it  is  necessary  to  sue  at  law  for 
the  recovery  thereof,  it  must  be  done  in  the  name  of  the  original  creditor, 
the  person  to  virhom  it  is  transferred  being  treated  rather  as  an  attorney 
than  as  an  assignee  ;  although  his  rights  will  be  recognized  and  protected 
in  some  measure  at  law%  against  the  frauds  of  the  assignor. — 2  Story^s 
Equity  Jurisprudence,  317.  Ryall  v.  Rolle,  1  Ves.,  353.  362.  Welsh  v. 
Mandevtlle,  1  Wheat.  Rep.,  235.  Mandeville  v.  Welsh,  5  Wheat.  R.,  277. 
283.      Tiernan  v.  Jackson,  5  Peters'"  R.,  597  to  602.      Gordon  v.  Browne, 

3  H.  (^  M.,  219.  Strand  v.  Howell,  2  Penn.,  649.  Skinner  v.  Somes, 
14  Mass.,  107.  Smock  v.  Taylor,  Coxe,  177.  Sheppard  v.  Stiles,  2 
Halst.,  94.  /Sayre  v.  Lucas,  2  <S;eu».,  259.  J3«f  5ee  Gibson  v.  Winter,  2 
Neville  4"  Perry  i2.,  277.  283.  In  equity,  on  the  other  hand,  the  assignee 
may  sue  on  such  an  assignment  in  his  own  name,  and  enforce  payment 
of  the  debt  directly  against  the  debtor,  making  him,  as  well  as  the  as- 
signor (if  necessary)  a  party  to  the  bill.— 2  Story's  Equity  Jurispru- 
dence, 318. 

2.  Is  any  particular  form  necessary  in  order  to  constitute  an  assign- 
ment of  a  debt,  or  other  chose  in  action  in  equity  ? 


62  ASSIGNMENT. 

None  at  all.  A  draft  drawn  by  A  on  B,  in  favor  of  C  for  a  valuable 
consideration,  amounts  (as  we  have  seen)  to  a  valid  assignment  of  so 
much  of  the  funds  of  A  in  the  hands  of  B. — Rome  v.  Dawson,  1  Ves.,_ 
332.  Crawfoot  v.  Gurney,  9  Bing.  R.,  372.  Smith  v.  Everett,  4  Bro. 
Ch.  Rep.,  64.  Any  order,  writing  or  act,  which  makes  an  appropriation 
of  a  fund,  amounts  to  an  equitable  assignment  of  that  fund.  — 2  Story's  Eq. 
Juris.,  311. 

The  blank  endorsement  and  delivery  of  a  bond  gives  the  holder  a 
right  to  sue  and  collect  the  money  due  thereon,  in  the  assignors  name.— 
McNulty  V.  Cooper,  3  Gill.  <^  Johns.,  214.  An  assignment  though  not 
in  all  the  forms  of  law,  vests  the  equitable  interest  in  the  assignee,  and 
the  assignor  will  not  afterwards  be  permitted  to  exercise  any  authority 
over  the  property  assigned..  —  Buchanan  v.  Taylor,  Addis.,  155.  The  as- 
signee of  a  bond  under  the  Virginia  statute  acquires  an  equitable  but  not 
a  legal  title  to  the  debt,  which  he  may  assert  at  law  in  his  own  name,  or  in 
the  name  of  the  obligee. —  Garland  v.  Richeson,  4  Rand.,  266.  The  as- 
signee is  not  bound  to  sue  the  obligor,  before  resorting  to  the  assignor,  if 
the  former  be  notoriously  insolvent.  — ^'auncZers  v.  Marshall,  4  Henning  cj- 
Mum  ford,  455. 


DECISIONS  OF  THE  SUPREME,  CIRCUIT  AND  DISTRICT 
COURTS  OF  THE  UNITED  STATES. 

ASSIGNMENT  OF  CHOSES  IN  ACTION. 

1.  May  not  in   England  any  instrument  or   claim   be  assigned  to  the 
king  ? 

It  may,  though  not  negotiable,  and  he  may  sue  upon  it  in  his  own 
name.  And  no  valid  objection  is  perceived  against  giving  the  same  effect 
to  an  assignment  to  the  government  of  this  country.  An  assignment  with 
notice  of  a  chose  in  action,  founded  in  illegality,  will  not  protect  the  par- 
ties from  the  legal  consequences  attached  to  the  original  contract.  —  Fayles 
et  al.  V.  Mai/hurry,  2  Gallis''  C.  C.  Rep.,  560.  Where  a  chose  in  action 
is  assigned  by  the  owner,  he  cannot  interfere  to  defeat  the  rights  of  the 
assignee  in  the  prosecution  of  a  suit  brought  to  enforce  those  rights,  and 
it  is  immaterial,  in  this  respect,  whether  the  assignment  be  good  at  law, 
or  in  equity  only.  The  doctrine,  however,  applies  only  to  cases  where 
the  entire  choses  in  action  has  been  assigned,  and  not  to  a  partial  assign- 
ment. A  nominal  plaintiff  suing  for  the  benefit  of  his  assignor,  cannot 
by  a  dismissal  of  the  suit,  under  collusive  agreement  with  the  defendant 
create  a  valid  bar  against  any  subsequent  suit  for  the  same  cause  of  ac- 
tion.—Welch  v.  Mandevillc,  1  Whcaton's  Reports,  233.  3  Condensed 
Rep.,  554. 

Courts  of  law,  as  well  as  courts  of  equity  will  take  notice  of  the  as- 
signment of  choses  in  action,  and  to  every  substantial  purpose  will  pro- 
tect the  assignee.- Cor.ser  v.  Craig,  1   Wash.  C.  C.  R.,  424. 

An  action  is  properly  brought  in  the  name  of  the  original  creditor, 
upon  an  open  acconnt  which  has  been  assigned  to  a  third  person,  but  the 


ASSIGNMENT.  63 

debtor  may  offset  in  such  action  all  payments  made  to  the  assignee,  on 
account  of  his  claim. —  Winchester  v.  Hacley,  2  Cranch,  342.  1  Cond. 
Rep.,  413.  The  nominal  plaintiffs  may  dismiss  a  suit  brought  in  his 
name,  by  a  creditor  who  has  not  an  assignment  of  the  cause  of  action. — 
Welsh  V.  Mandeville,  7  Cranch,  152.     2  Cond.  Rep.,  452. 

If  a  chose  in  action  be  assigned,  without  any  fraud  or  illegality  in 
its  origin,  which  is  not  assignable,  the  parties  are  not  precluded  from 
setting  up  such  matters  in  defence,  in  the  same  manner,  as  if  there  had 
been  no  assignment. — Fales  et  al.  v.  Mayherry,  2  Gallis'  C.  C.  R.,  560. 
The  assignor  of  a  patent  right,  cannot  maintain  an  action  in  his  own 
name  for  a  violation  of  the  patent.— Ty/er-  et  al  v.  Tuel,  6  Cranch,  324. 
2  Co7id.  Rep.,  388.  Under  the  patent  act  of  February  21, 1793,  ch.  156, 
if  the  patentee  has  sold  out  a  moiety  of  his  patent  right,  a  joint  action  lies 
by  himself  and  his  patentee  for  a  violation  of  it. —  Whittemore  v.  Cutter, 
1  Gallis's  C.  C.  R.,429. 

The  general  principle  of  law  is,  that  choses  in  action  are  not  at  law 
assignable,  but  if  assigned,  and  the  debtor  promises  to  pay  the  debt  to 
the  assignee,  the  latter  may  maintain  an  action  against  the  debtor  as 
money  received  to  his  use. — Tieman  v.  Jackson,  5  Peteis,  580. 


EFFECT  OF  POSSESSION  BY  AN  ASSIGNOR  OF  ASSIGNED 
PROPERTY  AFTER  ASSIGNMENT. 

1.  Is  not   a  grant  or   assignment  of  chattels  valid  at  common  law  be- 
tween the  parties,  without  actual  delivery  of  the  chattels  ? 

It  is,  and  the  property  passes  immediately  on  the  execution  of  the 
deed.  But  as  to  creditors  the  title  is  not  perfect,  unless  possession  ac- 
companies or  follows  the  deed. — Meeker  et  al.  v.  Wilson,  1  Gallts^  C.  C 
Rep.,  419. 

An  absolute  bill  of  sale  of  chattels,  is  fraudulent  as  to  creditors,  un- 
less possession  follows  and  accompanies  the  deed.  — Hamilton  v.  Russel, 
1  Cranch,  310.      1  Cond.  Rep.,  318. 

The  fact,  that  the  grantor  retains  possession  of  property  which  he 
has  conveyed,  is  not  an  evidence  of  fraud,  where  the  conveyance,  from 
its  terms,  is  to  leave  the  possession  in  the  vendor. —  United  States  v.  Hooe 
et  al,  3  Cranch,  73.      1  Ibid,  458. 

If,  at  the  time  of  the  transfer,  the  property  was  out  of  the  country, 
possession  must  be  taken  within  a  reasonable  time  after  its  return,  or  the 
grant  will  be  held  fradulent. — Meeker  et  al.  v.  Wilson,  1  Gallis''  C.  C. 
Rep.,  419. 

Notice  to  a  judgment  creditor  of  an  assignment  of  the  property  of 
his  debtor,  where  possession  had  not  been  taken  under  the  assignment, 
does  not  effect  the  right  of  the  sheriff  or  the  creditor  to  seize  the  property 
in  execution,  as  the  property  of  the  assignor.  ^/ii(i.  Good  faith  is  an 
essential  ingredient  of  an  assignment. — De  Wolf  \.  Harris,  4  Mason  C. 
C.  R.,  537. 


64  ASSIGNMENT. 


WHAT  IS,  AND  WHAT  IS  NOT,  ASSIGNABLE. 

1.  Is  not  a  decree  in   chancery  transferable  for  a  valuable  considera- 
tion ? 

It  is,  though  not  assignable  at  law,  and  a  court  of  chancery  will  sup- 
port the  transfer. —  Coates^  Execvtrix  v.  Muse  Adni'r.,  1  Breckenb.  C.  C. 
R.,  552.  So,  an  assignment  by  deed  of  partnership  debts  executed  by 
one  partner  will  be  sustained  in  equity  though  void  at  law  ;  if  it  ap- 
pear that  the  assignment  was  made  with  the  bona  fide  intention  of  securing 
the  creditors  of  the  ^xm.  —  Anderson  et  al.  v.  Tomkins,  Ibid,  456.  A 
general  assignment  is  valid  for  actual  liabilities,  as  well  as  for  debts  due, 
if  the  parties  so  attend. — Halsey  v.  Whitney,  4  Mason  C.  C.  R.,  206. 
An  assignment  by  one  partner,  in  the  name  of  the  firm,  of  the  partnership 
effects  and  credits  is  valid.  —  Harrison  v.  Sterry  et  al.,  5  Cranch,  289.  2 
Cond.  Rep.,  260.  An  assignment  of  goods  at  sea  and  their  proceeds,  if 
bona  fide  is  sufficient  to  pass  the  legal  title  to  the  goods,  and  also  to  the 
proceeds  ;  so  that  replevin  will  lie  for  the  latter.  And  an  endorsement  of 
the  bill  of  lading,  is  not  indispensable  to  perfect  an  assignment  of  goods 
at  sea.  — D' Wolf  V.  Harris,  4  Mason  C.  C.  R.,  515. 

An  assignment  of  prize  property  is  good  at  common  law  ;  and  after 
condemnation,  the  title  becomes,  by  a  retractive  operation,  perfect  in  the 
assignees.  —  The  Sally  and  Cargo,  1  Gallis"  C.  C.  Rep.,  409.  In  general, 
vested  rights,  ad  rem,  and  re,  possibilities  coupled  with  an  interest  and 
claim,  growing  out  of,  and  adhering  to  property,  may  pass  by  assignment. 
—  Comegys  et  al  v.  Vase,  1  Peters,  213.  But  the  book  debts  of  a  mer- 
chant, are  not  assignable  at  law  ;  and  a  deed  executed  by  one  of  a  mer- 
cantile firm,  purporting  to  convey  such  debts,  does  not  pass  the  legal  right. 
At  law,  the  assignment  is  only  power  to  collect  and  appropriate  the  debt 
which  is  revocable,  —  Anderson  et  al  v.   Tomkins,  1  Brock.  C.  C.  R.,  456. 

A  parol  assignment  of  a  share  in  a  prize,  is  void.  —  The  Dart,  1  Ma- 
son's C.  C.  R.,  4. 

In  general,  mere  personal  torts,  which  die  with  the  party,  and  do  not 
survive  to  his  personal  representatives,  cannot  pass  by  assignment. —  Co- 
megys et  al  V.  Vase,  1  Peters,  213. 


GENERAL  PRINCIPLES. 

A  general  assignee  of  the  effects  of  an  insolvent,  cannot  sue  in  the 
federal  courts,  if  his  assignee  could  not  have  sued  in  those  courts. — Sere 
et  al  V.  Pilot  et  al,  6  Cranch,  332.     2  Cond.  Rep.,  389. 

The  United  States  are  not  entitled  to  priority  over  other  creditors, 
under  the  act  of  March  2,  1799,  sec.  65,  ch.  128,  upon  the  ground  of  the 
debtor  having  made  an  assignment  for  the  benefit  of  creditors,  unless  it  is 
proved  that  the  debtor  has  made  an  assignment  of  all  his  property. —  Uni- 
ted States  V.  Howland  et  al,  4  Wheat.,  108.  4  Cond.  Rep.,  409.  Where 
an  assignment  does  not,  on  its  face,  purport  to  be  of  all  the  debtor's  prop- 
erty, it  is  incumbent  on  the  United  States,  if  they  insist  on  a  priority  of 


ASSIGNMENT.  65 

payment,  under  the  act  of  congress,  1799,  ch.  128,  sec.  Go,  to  establish, 
that  it  does,  in  fact,  contain  all  the  debtor's  property.  A  small  portion  left 
out  by  mistake  or  fraud,  will  not  defeat  the  priority  of  the  United  Stales. 
An  assignment  of  all  the  debtor's  property  in  a  schedule  referred  to,  which 
enumerates  only  specific  property,  and  does  not  purport  to  he  all,  affords 
no  presumption  that  it  is  all  the  debtor's  property,  or  a  general  assignment. 
—  tfnited  States  v.  Langton,  5  Mason's  C.  C.  R.,  289. 

A  patentee  of  an  invention  cannot  maintain  a  suit,  after  he  has  made 
an  assignment  for  any  violation  of  his  patent ;  but  the  suit  must  be  brought 
by  the  assignee.  An  assignment  made  before  the  patent  is  obtained,  is 
good,  and  binds  the  right  of  the  patentee. — Herbert  v.  Adams,  4  Masori's 
C.  C.  Rep.,  15.  The  assignor  of  a  patent  right,  cannot  maintain  an  ac- 
tion in  his  own  name  for  a  violation  of  the  patent. —  Tyler  et  al  v.  Tull, 
6  Cranch,  324.     2  Cond.  Rep.,  388. 

The  true  rule,  as  to  the  interference  of  a  court  of  equity  in  relation 
to  contracts,  in  which  fraud  is  alleged,  was  laid  down  in  Canard  v.  The 
Atlantic  Insurance  Co.,  4  Peters,  297.  "  If  the  person  against  whom  the 
fraud  is  alleged,  should  be  proven  to  have  been  guilty  of  it  in  any  number 
of  instances,  still,  if  the  particular  act  sought  to  be  avoided,  be  not  shown 
to  be  tainted  with  fraud,  it  cannot  be  asserted  with  the  other  frauds,  unless 
in  some  way  or  other  it  be  connected  with,  or  form  a  part  of  them."  In 
equity,  as  in  law,  frauds  and  injury  must  concur  to  furnish  ground  for  ju- 
dicial action.  A  mere  fraudulent  intent,  u^iaccompanied  by  any  injurious 
act,  is  not  the  subject  of  judicial  cognizance.  Fraud  ought  not  to  be  con- 
ceived, it  must  be  proved,  and  expressly  found.  — 12  Peters,  178. 

Wherever  the  principal  can  trace  his  property  in  the  hands  of  his 
factor  or  agent,  and  distinguish  it  from  the  mass  of  the  property  of  the 
latter,  he  is  entitled  to  recover  it  from  the  agent ;  or  in  case  of  his  failure, 
from  his  assignees. — Mclntire  v.  Curtis,  5  Mason's  C.  C.  R.,  80. 

Where  bills  of  lading  consign  the  property  to  a  consignee,  for  sales 
and  returns,  he  alone  can  endorse  them,  so  as  to  convey  the  title.  But 
subject  to  such  an  endorsement  to  a  purchaser,  the  consignor  may,  by  a 
legal  conveyance,  assign  a  legal  title  to  it,  so  as  to  be  good  against  his 
own  creditors. — De  Wolf  v.  Harris,  4  Mason  s  C.  C.  R.,  515. 

Assignees  of  prize  shares  must  be  presumed  to  know  the  stipulations 
of  the  articles  for  the  cruise,  by  being  put  upon  the  enquiry  by  the  very 
terms  of  the  assignment.  —  The  Brutus,  2  Gallis'  C.  C.  R.,  551. 

Where  property  abroad  is  transferred  either  as  security,  or  absolutely, 
it  is  sufficient  to  convey  a  good  title  to  the  purchaser  against  creditors,  if 
the  purchaser  uses  due  diligence,  upon  the  return  voyage,  to  take  posses- 
sion of  the  proceeds,  although  they  may  be  consigned  to  the  vendor. — De 
Wolfv.  Harris,  4  Mason's  C.  C.  R.,  515. 

Where  an  assignment  is  made  by  two  persons,  one  of  whom  accepts 

'the  trust,  and  the  other  repudiates  it,  the  assignment  is  operative  as  to  the 

assenting  trustee,  unless  there  is  some  condition  in  it  that  shall  be  void, 

unless  assented  to  by  both  trustees.  — Gonion  v.  Coolidge,  1  Sumner's  C. 

C.  Rep.,  537. 

Attorneys  at  law  having  confided  to  them  by  creditors,  a  discretionary 
power  to  collect  a  debt,  may,  in  the  exercise  of  their  discretion,  assent  to 
an  assignment  for  the  benefit  of  creditors,  and  bind  their  clients  thereto, 
9 


66  ASSIGNMENT. 

as  within  the  scope  of  the  authority  thus  confided  to  ihem. —  Gordon  v. 
Coolidge,  1  Sumner's  C.  C.  R.,  537. 

An  assignment  of  goods  at  sea,  and  their  proceeds,  if  bona  fide,  is 
sufficient  to  pass  the  legal  title  to  the  goods,  and  also  to  the  proceeds. 
And  an  endorsement  of  the  bill  of  lading,  is  not  indispensable  to  perfect 
such  an  assignment.  —  De  Wolf  v.  Harris,  4  Mason's  C.  C.  R.,  515. 

It  seems,  that  a  bona  fide  assignment  for  a  valuable  consideration, 
made  by  a  husband,  of  a  debt  actually  and  presently  due  to  his  wife,  di- 
vests in  equity,  the  title  of  the  wife. —  Cassell  v.  Carrell,  11  Wheat.,  134, 
6  Co7id.  Rep.,  249. 

Where  there  is  a  general  assignment  of  a  debtor's  property,  for  the 
benefit  of  creditors,  and  the  priority  of  the  United  States  attaches,  they 
having  various  debts  due  by  bonds,  with  different  sureties,  all  payments 
made  by  the  assignee  are  to  be  applied,  pro  rata,  to  all  the  debts  of  the 
United  States,  and  the  latter  are  at  liberty  to  apply  the  payments  in  any 
other  manner,  without  the  consent  of  all  the  parties  in  interest. —  United 
States  V.  Amory,  5  Mason's  C.  C.  R-,  455. 


DECISIONS  IN  1840  AND  1841  IN  MASSACHUSETTS,  PENN- 
SYLVANIA, DELAWARE,  NEW  HAMPSHIRE,  ARKAN- 
SAS, CONNECTICUT  AND  NORTH  CAROLINA. 

An  assignment  for  the  benefit  of  creditors  stipulated  for  a  "  full  and 
complete  release  of  their  respective  claims,"  against  the  assignors  within 
a  certain  time.  A  mercantile  firm,  creditors  of  the  assignors,  executed  a 
general  release  under  seal,  and  added  to  the  signature  the  following  words, 
"  on  condition  that  the  assignment  pays  over  25 — 100  on  our  claim." 
Held,  that  the  condition  was  void,  and  the  release  single  and  absolute  ; 
and  that  it  extinguished  the  debt.  —  Tyson  v.  Dorr,  Wharton's  Rep.,  vol.  6, 
p.  256.     A.  D.  1841. 

If,  after  judgments  are  obtained  against  a  principal  and  surety,  a  third 
person  interposes  and  gives  his  note  for  the  debt,  to  obtain  a  stay  of  exe- 
cution for  the  principal,  and  the  surety  is  afterwards  obliged  to  pay  the 
debt,  he  is  entitled  to  have  an  assignment  of  the  judgment  on  the  note  of 
the  third  person,  to  indemnify  him  for  such  payment. — Pott  v.  Nathans, 
Watts  i^  Scrg.  Penn.  Rep.,  vol.  \,p.  155.     A.  D.  1842. 

One  who  purchases  real  estate  which  is  encumbered  by  judgments, 
which  he  agrees  to  pay  out  of  the  purchase  money,  and  afterwards  dis- 
covers another,  which  he  did  not  agree  to  pay,  may  lake  an  assignment  of 
the  judgments  paid  by  him,  in  order  to  protect  himself  from  the  payment 
of  the  judgment,  which  he  did  not  agree  to  pay.  And  if  the  latter  judg- 
ment creditor  proceed  to  sell  the  estate  by  execution,  and  the  money  be 
brought  into  court  for  appropriation,  the  assignee  of  the  first  judgments 
will  be  entitled  to  the  money. — Bryson  v.  Myers,  Watts  6f  Sergt.  Penn.  ' 
Rep.,  vol.  I,  p.  420. 

The  assignee  of  a  bond  takes  it,  subject  to  all  the  equities,  as  between 
the  original  parties. — Griffith  v.  Lowry,  Harrington's  Rep.,  vol.  2,  p.  467. 
A.  D.  1841.     {Delaware  Reports.) 


ASSIGNMENT.  67 

Indebitatus  assumpsit  lies  by  assignee  v.  assignor  of  a  note,  where 
the  maker  proves  insolvent. — Pyle  v.  McMonagle,  Harrington's  Rep.,  vol. 
2,  p.  468.     A.  D.  1841. 

After  suit  brought,  a  failure  to  hold  the  defendant  to  bail,  does  not 
discharge  the  assignor,  if  the  maker  is  shown  to  be  insolvent.  —  Ibid. 

The  law  of  assignments  in  the  territorial  digest,  is  not  declaratory  of 
the  law,  but  introductory  of  a  new  rule.  It  creates  a  privity  of  contract 
between  the  assignee  and  obligor  or  promissor. 

The  assignor  of  a  bond  negotiable  by  statute,  is  not  competent  to  sue 
in  his  own  name,  to  the  use  of  the  assignee ;  and  in  such  suit,  a  plea  al- 
leging that  the  bond  was  assigned  before  the  institution  of  the  suit,  is 
good ;  and  this  is  the  law,  whether  the  bond  be  made  payable  to  order  or 
not.  —  Gamblin  v.  Walker,  Arkansas  Reports,  vol.  l,p.  220.  A.  D.  1840. 
Albert  Pike,  Counsellor  at  Law,  Reporter. 

After  an  assignment  is  once  made,  or  becomes  complete,  the  assignor 
has  no  power  to  release  the  debt,  or  any  part  of  it. 

The  assignment  being  a  contract  entered  into  by  mutual  consent  of 
two  persons,  cannot  when  properly  executed,  be  revoked  or  dissolved,  ex- 
cept by  the  like  mutual  consent  of  both  ;  the  contract  cannot  be  cancelled, 
nor  their  respective  rights  seriously  altered  or  destroyed,  unless  both  parties 
agree  to  their  alteration  or  destruction  ;  and  even  then,  that  agreement  must 
be  made  and  evidenced  according  to  the  grade  and  dignity  of  the  contract. 

The  assignee  cannot,  after  assignment  in  full,  and  delivery  to  him, 
restore  the  legal  interest  in  a  bond  to  the  assignor  by  the  erasure  or  can- 
cellation of  an  assignment.  He  may  destroy  the  evidence  of  his  own 
claim,  but  that  will  not  reinstate  the  legal  and  equitable  interest  in  the 
assignor,  without  any  agreement,  re-assignment,  or  re-delivery. — Abraham 
Block  V.  James  H.  Walker,  Arkansas  Reports,  vol.  2,  p.  4.  A.  D.  1841. 
Albert  Pike,  Counsellor  at  Law,  Reporter. 

The  holder  of  a  promissory  note  commenced  an  action  against  a 
surety  therein,  after  the  principal  had  assigned  his  property  to  the  holder 
for  the  benefit  of  his  creditors,  but  before  the  amount  to  be  divided  among 
them  was  ascertained,  and  while  the  action  was  pending,  received  a  divi- 
dend under  the  assignment.  It  was  held,  that  the  action  was  not  prema- 
turely brought,  nor  barred  by  the  receipt  of  the  dividend  ;  but  that  the 
amount  of  the  dividend  should  be  deducted,  in  estimating  the  damages. — 
Laban  Lincoln  v.  Samuel  Basset,  Pickering's  Reports,  vol.  23,  p.  154. 
A.  D.  1842. 

The  statute  of  July  5th,  1834,  entitled,  "  An  act  for  the  equal  distri- 
bution of  property  assigned  for  the  benefit  of  creditors,"  does  not  apply  to 
an  assignment  made  by  a  debtor  of  some  particular  part  of  his  property, 
merely  for  the  purpose  of  paying  some  particular  debt  or  <\ehis.  — Meredith 
Man.  Co.,  V.  Smith  and  Trustee,  8  New  Hampshire  Rep.,  347.  A.  D.  1840. 
A  pledge  by  a  debtor  of  all  his  property  to  secure  the  payment  of  a 
particular  debt,  is  not  an  assignment  within  the  meaning  of  the  statute  of 
July  5th,  1834,  entitled,  "  An  act  for  the  equal  distribution  of  property 
assigned  for  the  benefit  of  creditors."  — iotre  v.  Wyman  and  Trustee,  8 
New  Hamp.  Rep.,  536.     A.  D.  1840. 

Where   a   manufacturing   company,  in   embarrassed    circumstances, 
made  a  general  assignment  of  its  effects  to  A,  to  secure  him  for  his  lia- 


68  ASSION'MF.XT. 

bilities  for  the  company,  as  endorser  and  otherwise,  with  power  to  work 
up  the  stock  on  hand,  and  to  make  purchases  of  any  materials  necessary 
for  that  purpose,  and  to  reimburse  all  expenses  so  incurred,  from  the  avails 
of  the  property  assigned ;  it  was  held  that  such  special  power  did  not  in- 
validate the  assignment.  —  Kendall  v.  The  New  England  Carpet  Company 
4"  Others,  13  Conn.  Rep.,  583.     A.  D.  1841. 

Where  such  company,  after  the  assignment  to  A,  mortgaged  the 
same  property  to  B  ;  and  then  C,  a  partner  in  the  company,  and  agent 
both  for  the  company  and  for  A,  under  the  assignment,  applied  $1,000  of 
the  avails  of  the  mortgaged  property  to  the  payment  of  other  debts  of 
the  company  ;  but  it  appearing  that  A,  after  mortgages,  had  received  funds 
of  the  company  not  embraced  in  the  mortgages,  to  the  amount  of  $4,000 
•which  he  had  credited  in  his  account  with  the  company  and  B  ;  it  was 
held,  that  neither  the  company  nor  B  could  take  exception  to  the  account, 
on  this  ground.  —  lb. 

A,  being  in  failing  circumstances,  on  the  31st  of  March,  made  a  gen- 
eral assignment  of  his  property,  real  and  personal,  to  B,  in  trust  for  his 
creditors,  under  the  statute  of  1828;  and  the  deed  of  assignment  was,  on 
the  same  day,  lodged  for  record  in  the  office  of  the  court  of  probate.  B 
accepted  the  trust,  and  inventoried  the  estate  assigned,  including  eight 
shares  of  the  stock  of  the  Hartford  Bank.  On  the  1st  of  April,  C,  a  cre- 
ditor of  A,  without  any  actual  knowledge  of  the  assignment,  attached 
such  shares,  then  standing  on  the  books  of  the  bank,  in  A's  name  ;  and 
afterwards  had  them  sold  and  applied  in  satisfaction  of  the  execution  ob- 
tained in  the  suit  against  A.  At  the  time  of  the  attachment,  there  was  in 
force  a  by-law  of  the  Hartford  Bank,  previously  made  in  conformity  to  its 
charter,  requiring  all  transfers  of  its  stock  to  be  made  in  a  book,  kept  by 
the  bank  for  that  purpose,  in  a  prescribed  form.  On  a  bill  in  chancery, 
brought  by  B  against  C,  for  the  avails  of  the  stock  so  attached  and  sold, 
it  was  held,  1.  That  the  assignment  of  A,  and  the  record  of  it  in  the  pro- 
batf  'ifTice,  did  not  transfer  the  legal  title  of  A  in  the  stock  to  B  ;  2.  That 
C,  h.uirig  no  actual  knowledge  of  the  assignment,  at  the  time  of  his  at- 
tachment, B  acquired  no  equitable  title  in  such  stock  ;  3.  That  as  the  bill 
sought  only  the  recovery  of  a  sum  of  money,  the  avails  of  the  stock  sold, 
there  was  adequate  remedy  at  law.  and  consequently,  the  bill  on  that 
ground  also  must  be  dismissed.  —  Button  v.  The  Connecticut  Bank,  13 
Conn.  Rep.,  493. 

In  equity  a  distinct  appropriation  and  delivery  over  by  a  debtor  of 
his  choses  in  action,  for  the  benefit  of  one  of  his  creditors,  is  an  assign- 
ment of  them,  and  will  prevail  against  a  subsequent  assignment  by  deed 
of  all  his  choses  in  action  to  another  creditor ;  for,  as  in  neither  case  is 
the  assignment  a  transfer  of  the  legal  interest  in  the  choses  in  action, 
that  which  is  in  equity  an  assignment  first  in  point  of  time  will  prevail. — 
Thighin  v.  Home,  1  Iredell's  Eq.  Rep.,  20.  A.  D.  1841.  An  assignment 
by  deed  of  all  a  debtor's  choses  in  action,  for  the  benefit  of  one  of  his 
creditors,  will  not  entitle  that  creditor  to  claim  money,  not  the  proceeds 
of  such  choses  in  action,  paid  subsequently  by  the  debtor  to  another  cred- 
itor.— Ihid.  IredclVs  North  Carolina  Equity  Reports,  Vol.  1 .  Published 
by  Turner  &  Hughes.     Releigh,  North  Carolina. 


ASSIGXMENT.  69 


FOREIGN  LAW. 


In  Scotland,  according  to  the  old  style  of  assignments,  the  assignee 
was  made  mandatry,  and  procurator  in  rem  suam.  He  was  thus  empowered 
to  sue  for,  recover  and  discharge  the  obligation  in  the  same  manner  as 
the  creditor  himself  might  have  done. 

In  the  present  day  assignations  are  considered  not  merely  as  man- 
dates, but  as  conveyances,  by  which  the  property  of  the  subject  assigned 
is,  without  any  such  assignment  of  procurator,  completely  vested  in  the 
assignee.  The  person  who  is  in  the  right  of  any  subject,  although  it  does 
not  bear  to  the  assignees,  may  convey  it  to  another,  subject  to  certain  ex- 
ceptions. Thus  alimentary  rights  given  for  the  personal  subsistance,  or 
alimony  of  the  grantee.  —  Fac.  Coll.,  May  19,  1791.  Mackenzie,  Diet., 
10413.  McDonnell,  Nov.  2oth,  1819.  Fac.  Coll.  Erskine,  b.  3,  tit.  5,  s. 
1  ;  tit.  6,  ^  7.  And  rights  which  are  personal  to  the  creditor,  from  the 
delectus  personcB,  by  the  grantor,  cannot  be  assigned  unless  there  are  spe- 
cial powers  given  by  him,  enabling  the  grantee  to  transfer. — Erskine,  b.  3, 
tit.  5,  sec.  1  ;  tit.  6,  §  7. 

There  is,  in  the  assignation,  an  implied  warrandice  that  the  debt  is 
due  ;  and  that  the  title  to  assign  is  good.  The  cedant  is  not,  without 
special  stipulation,  held  to  warrant  the  solvency  of  the  debtor.  —  Erskine, 
b.  2,  tit.  3,  sec.  25.      See  Fountainhall,  2  Browne's  Sup.,  519. 

The  assignation  not  intimated,  although  it  will  be  valid  against  the 
assignor,  yet  if  before  intimation  of  a  first  assignment,  the  assignor  grants 
a  second  assignment  to  another  person,  the  second  assignment,  if  it  be  in- 
timated before  the  first,  will  be  preferred  to  the  first.  — See  Fac.  Coll.,  vol. 
3,  117.  Till,  ^c.  July  27th,  1763.  Diet.,  2851.  It>.,  May  24th,  1797, 
Cred.  of  Gordon,  Diet.,  2905.  54  Geo.  3,  c.  137.  2  Bell's  Com.,  366, 
et  seq. 

The  assignee  cannot- plead  compensation  upon  the  debt  assigned,  if 
the  concourse  ceased  before  the  assignment  was  completed  by  intimation. 
Braham,  Nov.  1733,  reported  by  Elchies,  n.  2,  v.  Compensation.  And  in 
like  manner,  if  an  assignation  be  not  intimated  by  the  assignee  during  the 
life  of  the  cedent,  any  creditor  of  the  cedent,  who,  upon  his  death,  con- 
firms the  debt  assigned  before  the  assignment  be  intimated,  shall  be  pre- 
ferred to  such  assignee. — Kaims,  87.  Sinclair,  July  5th,  1726.  Diet., 
1793.  See  also,  Durie,  Jan.  22 J,  1630.  Macgill,  Diet.  860.  Fou7it.  July 
22nd,  1708.  Ex.  of  Selkirk,  Diet.,  4453.  As  reversed  in  House  of 
Lords  ;  Robertson's  Cases,  1.  See  2  Bell's  Comm.,  23.  Kaimes,  Rem., 
Dec.  124.  TurnbuU,  June  I2th,  1751.  Diet.,  368.  Fac.  Coll.,  Nov. 
23d,  1785.  Newton  6f  Co.  Diet.,  850.  Elphinstone,  Dee.  l\th,  1674. 
Diet.,  12,  462.  Dalr.,  179.  Faculty  of  Advocates  v.  Dickson,  July  25th, 
1718,  Diet.  866.  Fount.,  Feb.  I6th,  1703,  Leith  Diet.  865.  Fac.  Coll., 
Jan.  18th,  1776,  Dickenson's  Diet.,  873.  Durie,  March  \Ath,  1626,  L. 
Westraw  Diet.,  859.  Ersk.,  b.  2,  tit.  1,  sec.  28;  sec.  4,  ad  fin. ;  b.  3,  tit. 
5,  sec.  5.  Stair,  b.  2,  tit.  1,  sec.  24.  Bankt.,  b.  3,  tit.  1,  sec.  12.  Staire, 
h.  3,  tit.  1,  sec.  10.  Staire,  Feb.  3d,  1676.  Cultie  Supp.  to  Diet.,  p.  50, 
and  2  Browne's  Supp.,  197.  Lyell,  MarchWth,  1823.  S.  <Sf  D.  Graham, 
Dec.  \5lh,  1814.    Fac.  Coll.  Kilk.  <Sf  Falc.  Wilson,  Feb.  28th,  1751,  Diet., 


70  ASSIGNMENT. 

40,  41.  Falc.  1,  June  Wtk,  1745,  Stewart,  Diet.,  3089,  reported  by  El- 
chies,  Voce  Assignation,  6.  Kyle,  June  12tk,  1813,  Young.  Diet.,  3137. 
2  BelVs  Comm.,  24.      See  3  Burge  on  Coll.  and  Forr.  Law,  555. 

In  Ireland,  the  assignments  of  judgments,  statute  staples,  and  statute 
merchants  under  the  statutes  of  9  Geo.  2,  c.  5,  and  25  Geo.  2,  c.  14,  en- 
ables the  assignees  of  these  securities  to  sue  in  their  own  names.  It  has 
been  held  that  those  statutes  are  confined  to  judgments  upon  cognovits. — 
O' Fallon  V.  Dillon,  2  Schn.  6^- Lef.  Rep.,  13.  O'Callaghan  v.  Marchioness 
of  Thomond,  3  Taunt.,  82.  Vaughan  v.  Plunket,  Ibid.  Innes  v.  Dunlop, 
8  T.  R.,  595. 

By  an  act  of  Barbadoes,  No.  172,  February  15th,  1736,  ch.  1,  any 
person  having  the  beneficial  interest  of  any  debt  or  demand  assigned,  en- 
dorsed, or  transferred  to  him  by  the  person  who  had  goods,  right  and  title 
so  to  do,  in  the  manner  mentioned  in  the  act,  is  enabled  to  commence  and 
prosecute  any  action  or  suit  for  the  recovery  thereof,  in  any  court  of  law 
or  equity  in  the  island,  in  his  own  name,  either  against  the  original  debtor 
or  any  of  the  assignors,  or  indorsers,  or  acceptors,  according  to  the  nature 
of  the  case  in  the  same  manner  as  the  original  creditor  and  the  assignees 
of  foreign  bills  of  exchange  have  been  allowed  to  do,  and  not  otherwise. 
—  3  Burge  on  Coll.  <Sf  Forr.  Law,  565. 

B\'  an  act  of  Bermuda,  passed  the  10th  of  May,  1786,  and  continued, 
any  person,  body  politic  or  corporate,  may  assign,  endorse,  and  transfer, 
any  bond,  bill  or  other  obligation,  and  the  assignee  or  indorsee,  his  exec- 
utors, administrators,  and  successors,  by  virtue  of  such  assignment  or  in- 
dorsement, may  commence  and  prosecute  any  suit  at  law  in  his,  or  their 
own  name  or  names,  for  the  recovery  of  any  debt  due  by  such  bond,  bill, 
or  other  obligation,  as  the  first  obligee,  his  executors  or  administrators 
might  or  could  lawfully  do.  —  Bermuda,  Act  26th,  Geo-  3. 

By  an  act  of  Jamaica,  a  bond  may  be  assigned  and  the  assignee  may 
sue  on  it  in  the  name  of  the  original  obligee,  if  it  be  assigned  in  writing 
under  the  hand  of  the  obligee,  or  his  attorney  or  executors  or  administra- 
tors, in  the  form  prescribed  by  the  act. — 14  Geo.  3,  c.  28,  sec.  3. 

A  creditor  in  Scotland,  where  the  intimation  is  required  for  perfecting 
the  assignment,  must  give  such  intimation  to  the  debtor,  although  the  latter 
be  domiciled  in  a  country  where  such  intimation  is  not  required.  On  the 
other  hand,  a  debt  owing  by  a  person  to  a  foreign  creditor  may  be  assigned 
by  the  latter  in  his  country  without  giving  such  intimation,  if  it  were  not  re- 
quired by  the  law  of  his  country. — Sill  v.  Worswick,  1  //.  Black.,  691,  692. 
In  re  Wilson,  Ibid.  Bohlen  v.  Cleveland,  5  Mason,  174.  Holms  v.  Remsen, 
4  Johns.  Ch.  Rep..  460.  S.  P.  20  Johns.  Rep.,  229,  267.  Kaims,  Eq., 
b.  3,  c.  8,  sec.  3,  p.  344.  Selkrig  v.  Davis,  2  Rose,  B.  Cas.,  315.  Stein's 
Case,  1  Ibid,  481.  2  Bell's  Comm.,  21,  22,  23.  Foster  v.  Sinkler,  4 
Mass.  Rep.,  450.  Blake  v.  Williams,  13  Ibid,  286.  307,  308.  314.  S. 
C,  6  Pick,  286.  307.  314.  Wood  v.  Partridge,  11  Mass.  Rep.,  488.  Dix 
V.  Cobb,  4  Ibid,  508.  Hunter  v.  Potts,  4  7"'.  R.,  182,  192.  Livemore's 
Dessert,  140  to  159.  Solomons  v.  Ross,  and  other  cases  cited,  1  H.  Black., 
131,  132,  no<e.  Scott  v.  Allnutt,  2  Dow  <^  CI.,  404.  412.  Ogden  v. 
Saunders,  12  Wheat.,  364,  365.  Morrison's  Cases,  4  T.  R.,  185.  Huber, 
lib.  1,  tit.  3,  sec.  9.  Moreton  v.  Milne,  6  Binn.  353.  361.  369.  Story's 
Comm.,  p.  328  to  334.     Although  the   law  of  the  country  in  which  the 


ASSIGNMENT.  71 

assignment  is  made  may  entitle  the  assignee  to  sue  in  his  own  name,  yet 
if  he  sues  in  England,  or  in  the  courts  of  those  colonies  or  of  those  states 
in  America  where  the  common  law  does  not  recognize  the  title  of  the  as- 
signee, so  as  to  admit  of  his  suing  in  his  own  name,  he  can  in  those 
courts,  sue  only  in  the  name  of  the  assignor.  —  Follicott  v.  Ogden,  1  H. 
BL,  131.  Innes  v.  Dunlop,  8  T.  R.,  595.  Wolf  v.  Oxholm,  6  M.  (^  S., 
99.     Jeffrey  v.  McTaggert,  Ibid,  126. 

The  law  of  a  foreign  country  is  admitted  in  order  that  the  contract 
may  receive  the  effect  which  the  parties  to  it  intended.  No  state,  how- 
ever, is  bound  to  admit  a  foreign  law  even  for  this  purpose,  when  that  law 
would  contravene  its  own  positive  laws,  institutions,  or  policy,  which 
prohibit  such  a  contract,  or  when  it  would  prejudice  the  rights  of  its  own 
subjects.  The  foreign  law  is  to  be  admitted,  says  Huber,  "  si  nullum  inde 
civibus  alienis  creatur  prajudicium,  in  jure  sibi  quasito."  —  Huber,  Pree.  Jur. 
lib.  1,  tit.  3,  n.  11.  Rodenburg,  tit.  2,  c.  5,  p.  91,  and  MatthcBus,  Matth. 
de  Auct.  lib.  1,  c.  21,  n.  35,  et  seq.,  both  recognize  this  principle.  This 
qualification  is  recognized  by  the  judicial  tribunals  of  England  and  the 
United  States.  —  3  Burge  on  Coll.  <^  Forr.  Law,  779. 

The  supreme  court  of  Louisiana  holds,  that  in  a  conflict  of  laws,  it 
must  often  be  a  matter  of  doubt  which  should  prevail  ;  and  that  whenever 
that  doubt  does  exist,  the  court  which  decides  will  prefer  the  law  of  its  own 
country  to  that  of  the  stranger.  —  Saul  v.  His  Creditors,  17  Martin,  596. 
And,  if  the  positive  laws  of  a  state  prohibit  particular  contracts  from  hav- 
ing effect  according  to  the  rules  of  the  country  where  they  are  made,  the 
former  must  prevail.  — i^uZ,  597.  This  opinion  is  followed  by  Mr.  Chan- 
cellor Kent,  and  Mr.  Justice  Story. — 2  Kent's  Commentaries,  461.  Story^s 
Ibid,  270. 

''  The  application  of  the  lex  loci  to  contracts,  though  general,  is  not 
universal.  It  does  not  take  place  where  the  lex  loci  is  in  itself  unjust,  or 
contra  bones  mores,  or  contrary  to  the  public  law  of  the  state,  as  regarding 
the  interests  of  religion  or  morality,  or  the  general  well-being  of  society." 
— Ferguss.  on  Marr.  and  Div.,  397.  Lord  Mansfield  says,  in  many  coun- 
tries a  contract  may  be  maintained  by  a  courtezan  for  the  price  of  her 
prostitution,  but  that  never  could  be  allowed  in  this  country.  —  Robinson  v. 
Bland,  2  Burr.,  1084.  It  is  perfectly  clear  that  the  lex  loci  cannot  in  all 
cases  govern  and  direct. — De  Wutz  v.  Hendricks,  9  Moore,  586.  S.  C. 
2  Bing.,  314.  Thompson  v.  Powles,  2  Simons,  194.  Jones  v.  Garcia  del 
Rio.  1  Turn.  ^  Russ.,  299.  Pattison  v.  Mills,  1  Dow  <Sf  Clarke,  342. 
Marshall,  Insur.,  b.  1,  c.  3,  sec.  3,  p.  78  ;  sec.  4,  p.  85.  Griswold  v.  Wad- 
dington,  16  Johns.  Rep.,  438.  2  Wheaton''s  Rep.,  Appendix,  35.  Rich' 
ardson  v.  Maine  Ins.  Co.,  6  Mass.  Rep.,  102.  110.  112,  113.  Musson  v. 
Fayles,  16  Ibid,  332.  Coolidge  v.  Inglee,  13  Ibid,  26.  Fergusson  Cons. 
Cas.,  396,  397.  Madrazo  v.  Willis,  3  Barn.  4-  Aid.,  353.  Forbes  v. 
Cochrane,  2  Barnwell  ^  Cresswell,  448.  Story's  Commentaries,  213, 
214,215. 


72  ASSIGNMENT. 


HISTORY  AND  ORIGIN  OF  ASSIGNMENT. 

Assignment  was  originally  a  mode  of  the  subjects  taking  advantage  of 
the  crown   process   for  the   recovery  of  his   private  debts,    by  assigning 
them  to  the  king  for  debts   due  to  him.  — 2  Leon,  67.     This  was  allowed 
at  common  law,  and  might  have  been  done,  even   though   the  amount  of 
the  debts  assigned  were  not  ascertained. — 2  Leon,  55,  and  see  Gilb.  Ex- 
cheq.,  167,  <^c.      Com.  Dig.,  tit.  Assignment  D.     And*  after  such   assign- 
ment the  king  was  entitled  to  have  execution  against  the  body,  lands  and 
goods  of  the   debtor. — 4  Inst.,  15,  and  see   Com.  Dig.  tit.  Dett.,  15.     But 
this  prerogative  of  the  king  having   been  abused  by  his  debtors,  for  their 
own  private  benefit,  a  rule  of  court  was  made,  that  "  no  debt  should  be  as- 
signed and  set  over   to   the   king,  by   any  person  or  persons  but  such  as 
shall  be  allowed  of  and  appointed  to  be  retained  by  the  lord  high  treasurer 
of  England,  chancellor  and  barons  of  the  exchequer,  in  open  court." — R. 
M.,  34  &  35  Eliz.  in  Scar.     And  by  the  statute,  7  Jac.  I,  c.  15,  "  no  debt 
shall  be  assigned  to  the  king,  his   heirs   and  successors,  by  or  from   any 
debtor  or  accountant,  to  his  majesty,  his  heirs  and   successors,  other  than 
such  debts  as  did  before  grow   due  originally  to  the  king's  debtors  or  ac- 
countant bona  fide,  and   that  all  grants   and  assignments   of  debts  to  the 
king,  his  heirs  or  successors,  which  shall  be  had  or  made  contrary  to  the 
true  intent  of  that  act,  shall  be  void  and  of  no  force."     A  privy  seal  was 
also  made  in  the  12th  of  James  the  first,  declaring  that  no  debt  of  record, 
or  other  debt  or  covenant  whatsoever,   should  at   any   time   be   assigned, 
granted  or  conveyed  to  him,  his  heirs  or  successors,  by  any  debtor  or  ac- 
countant,  or  other  person  or  persons  whatsoever ;  nor  any  such  assign- 
ment allowed,  admitted  or   accepted. —  West.,  258,  &c.     This  privy  seal 
having  determined  on  the  death  of  James  I,  a  rule  of  court  was  made  in 
the  succeeding  reign.  —  R.  H.,  15.     Car.  1,  §  1.     In  Scac.  Gilb.  Excheq. 
173,  4,  5.      West.  Append.,   124.     5  Man.   L.  X.   Append.,  229,   for   en- 
forcing the  execution  of  the  statute  ;  which  directs,  that  "  he  who  assign- 
eth  any  debt  to  the  king  shall  take  an  oath  that  the  debts  assigned,  are  just 
and  true  debts,  and  have  not  formerly  been  put  in  suit  in  any  other  court, 
and  that  the  same  are  his  own  proper  debts  originally  due  unto  him  bona 
Jide,  without  any  trust  and  that  he  hath  not  received  the  same  nor  any 
part  thereof  except,  &Lc.  —  Ih.     lb.     But  a  debt  due  to  a  man  jwre  uxoris 
is  considered  as  a  debt  originally  due  to  him,  within  the  meaning  of  the 
statute.  — Par Aer,  271.     It  is  also  a  rule,  that  "no  debts  without  specialty 
shall  be  assigned  to  the  king ;"  otherwise   in  case   of  debts  in  aid  R.  H., 
15.      Car.  1,^4,  in  Scac.      Gilb.  Exch.,  176,  7.      West  Append.,  124.     5 
Man.  L.  X.,  Append.  230.     Where   the    word  otherwise  is  omitted,  since 
which  latter  rule,  assignments  of  debts  to  the  king  have  become  obsolete. 
—2  Tidd's  Prac,  1067.      West.  255. 


ATTACHMENT.  73 


ATTACHMENT. 

1.  "Will  a  prior  assignment  in  bankruptcy,  under  a  foreign  law,  be  per- 
mitted to  prevail  against  a  subsequent  attachment  by  an  American  creditor 
of  the  bankrupt's  effects  found  in  the  United  States  ? 

It  will  not.  American  courts  will  not  subject  their  citizens  to  the  in- 
convenience of  seeking  their  dividends  abroad,  when  they  Imve  the  means 
to  satisfy  them  under  their  own  control.  This  was  the  rule  in  Maryland, 
prior  to  our  revolution,  accordingf  to  the  opinion  of  Mr.  Dulany,  reporter  in 
Burk  V.  McLean,  I  Har.  4"  McHen.,  236.  And  afterwards,  in  1790,  it 
was  decided  in  Wallace  v.  Patterson,  2  Har.  6f  McHen.,  463,  that  property 
of  the  bankrupt  could  be  attached  here,  notwithstanding  a  prior  assign- 
ment in  batdiruplcy  in  England.  The  same  doctrine  was  declared  in 
Pennsylvania,  after  an  elaborate  discussion  of  the  question.  —  Milne  v.  Mor- 
ton, 6  Binn.  Rep.,  353.  Mulliken  v.  Aughinbaitgk,  1  Pe.nn.  Rep.,  117,  to 
the  same  point, —  Ogden  v.  Gillingham,  1  Baldwin^s  Rep.  C.  C.  U.  S.,  38. 
The  court  in  that  state  considered  that  an  assignment  abroad,  by  act  of 
law,  had  no  legal  operation,  extra  territorum,  and  that  they  were  bound  to 
look  to  their  own  law.  The  same  doctrine  was  declared  in  North  Caro- 
lina as  early  as  1797.  —  McNeil  v.  Colquhoun,  2  Hai/warcrs  Rep.,  24.  In 
South  Carolina,  the  question  arose  in  the  case  of  the  Assignees  of  Top- 
ham  V.  Chap?}ian,  in  1817,  1  M.  Const.  Rep.,  S.  C,  283.  And  the  court 
in  that  case  followed  some  prior  decisions  of  their  own  ;  and  the  case  of 
Taylor  v.  Geary,  decided  in  Connecticut  as  early  as  1787,  Kirby^s  Rep., 
313.  And  they  held,  justice  and  public  policy  all  combined  to  give  a  pref- 
erence to  their  own  attaching  creditors.  The  point  arose  in  the  supreme 
court  of  Massachusetts  in  Ingrahamx.  Geyes,  in  1816,  13  Mass.  Rep.,  146, 
And  they  would  not  allow  even  a  voluntary  assignment  by  an  insolvent 
debtor  in  another  state,  to  control  an  attachment  in  that  state,  of  the  prop- 
erty of  the  insolvent,  made  subsequent  to  the  assignment,  and  before  pay- 
ment to  the  assignees  ;  and  the  court  denied  that  any  such  indulgence  was 
required  by  the  practice  or  comity  of  nations.  See  also,  to  the  same  point, 
The  Brig  Watchman,  in  the  District  Court  of  Maine,  Ware''s  Rep.,  232. 
Sauttdersv.  Wtlliams,  5  N.  Hamp.  Rep.,  2 13-.  Mitchell  v.  McMillan,  3 
•iMartrn's  Louis.  Rep.,  ^16.  Borden  v.  Sumner,  A  Pick.,  265.  Blake  v. 
Williams,  6  Id.,  286.  Fall  River  Iron  Works  v.  Croade,  15  Id.,  11.  Fox 
iV.  Adams,  5  Greenleafs  Rep.,  245.  Oliver  v.  Townes,  14  Martinis  Louis. 
Rep.,  93.     Norris  v.  Mumford,  4  Id.,  20. 

I  And  in  the  case  of  Ogden  v.  Saunders,  12  Wheat.,  213,  the  supreme 

I  court  of  the  United  States  delivered  the  opinion  in  behalf  of  the  majority 
lof  the  court,  in  accordance  with  the  foregoing  decisions. 
j  But  in  Goodwin  v.  Jones,  3  Mass.  Rep.,  517,  Ch.  J.  Parsons  held  to 
Ithe  English  doctrine  ;  and  in  Bohlen  v.  Cleveland,  5  Mason's  Rep.,  174, 
jan  assignment  was  held  to  prevail  over  a  trustee  or  attachment  as  against 
Icreditors,  living  in  the  same  state  with  the  debtor.  In  South  Carolina,  a 
bona  fide  foreign  assignment  in  trust  for  creditors,  takes  precedence  ot  a 
[■subsequent  attachment  levied  within  the  state,  but  not  if  executed  under 
10 


74  ATTACHMENT. 

the   operation  of  a    statute  of  bankruptcy. —  Green    v.   Moury,  2  Bailey's 
Rep.,  163. 

WHAT  CONSTITUTES  A  VALID  ATTACHMENT. 

1.  Must  not  the  officer  have  actual  possession  and  custody  of  the  goods, 
to  constitute  a  valid  attachment  ? 

He  must.  — Odiornc  v.  Colley,  2  A''.  Hamp.,  66.  Huntingdon  v.  Blais- 
dell,  Ih.,  317.  Pomeroy  v,  Kingsley,  1  Taylor,  294.  Dunklee  v.  Fales,  5 
N.  Hamp.,  527.  Bagley  v.  TT7n7e,  4  PicA.,  395.  floUister  v.  Goodale,  3 
Conn.,  3:52.  Lyman  v.  Lyman,  \\  Mass.,  317.  Phillips  v.  Bridge,  Ibid, 
243.  iTno/i/?  V.  Sprague,  9  iT/a.?.?.,  258.  Ftnfon  v.  Bradford,  13  il/a5,v., 
116.     i^n^y^e  v.  ir?/;/ian,  14  ilfa^s'.,  190.      Ga/e  v.  PFar J,  li.,  356. 

But  it  is  not  necessary  that  he  take  hold  of  every  article.— Tram  v. 
Willington,  12  Mass.,  495. 

An  attachment  and  an  arrest  on  the  same  writ,  cannot  both  be  valid. 
—Daniel  v.  Wilcox,  2  Root,  246.     Brindley  v.  Allen,  3  Mass.,  561. 

But  if  the  body  be  first  arrested,  and  before  the  return  of  the  writ, 
the  creditor  release  the  body,  and  attach  the  defendant's  goods  on  the  same 
writ,  the  attachment  is  legal.— -Sco^f  v.  Crane,  1  Conn.,  233.  Contra,  3 
Mass.,  561. 

An  attachment  is  not  completed  until  a  summons  is  served  on  the 
debtor  ;  but  when  the  summons  is  served,  the  attachment  relates  to  the 
time  it  was  made. — Almy  v.  Wolcott,  13  Mass.,  73. 


WHAT  PROPERTY  MAY  BE  ATTACHED. 

Bank  bills  that  belong  specifically  to  the  defendant,  may  be  attached 
—  Kno7olton  V.  Bartlett,  1  Pick.,  271.  Spcnce  v.  Blaisdell,  4  New  llamp' 
shire  Rep.,  198. 

A  party  may  attach  a  judgment  recovered  against  himself. —  Grayson 
V.  Veech,  12  Martin's  Louis.  Rep.,  688.  Graighle  v.  Notnagle,  1  Peters' 
Rep.,  245. 

Property  assigned  for  the  benefit  of  creditors,  may  be  attached  before 
they  have  obtained  possession.  —  Ramsey  v.  Stephenson,  5  Martin's  Louis. 
Rep.,  23.     Dumford  v.  Brooks  Syndics,  3  Martin,  222,  269. 

A  sale  of  property  which  j)asses  the  title  to  the  vendee,  but  not  fol- 
lowed by  delivery,  is,  in  the  hands  of  the  vendor,  liable  to  attachment. — 
Shumway  et  al  v.  Ruttcr,  7  Pick.  Mass.  Rep.,  56.  Bartlett  v.  Williams,  1 
Pick.,  288.  Baily  v.  Ogden,  3  Johns.  N.  Y.  Rep.,  394.  Bond  v.  Ward,  7 
Mass.  Rep.,  123.  Wilkes  et  al  v.  Ferris,  5  Johns.  Rep.,  335.  So,  credits 
assigned  are  liable  to  attachment  for  the  debts  of  the  transferer,  before 
notice  to  the  debtors. — Fisk  v.  Chandler,  7  Martin's  R.,  24.  Louduman  v. 
Wilson,  2  Har.  6f  Johns.  Md.  Rep.,  379.  Badnall  v.  Moore  et  al,  9  Mar- 
tin's Louis.  Rep.,  403.  Dumford  v.  Brooks  Syndics,  3  Martin's  R.,  322. 
Norris  V.  Mum  ford,  4  Martin's  Rep-,  20.  Ramsey  v.  Stevenson,  5  Martin's 
Rep.,  23. 


ATTACHMEXT.  75 


WHAT  PROPERTY  IS  EXEMPT  FROM  ATTACHMENT. 

1.  Are  goods  liable  to  attachment,  that  cannot  be  returned  in  the  same 
plight  ? 

They  are  not.  — Leavitt  v.  Holbrook,  5  Verm.,  407.  Bond  v.  Ward,  7 
Mass.,  129. 

Private  papers  and  account  books  are  not  liable  to  attachment  or  sei- 
zure on  execution,  nor  negotiable  promissory  notes.  If  a  sheriff  collects 
money  on  execution,  it  cannot  be  attached  in  his  hands  as  the  property  of 
the  judgment  creditor.  So,  where  goods  are  held  by  a  collector  to  en- 
force payments,  or  as  security,  the  importer's  private  creditors  could  not 
attach  the  property  in  the  hands  of  the  collector. — Oysted  v.  Shed,  12 
Mass.,  510.  Maine  F.  Sf  M.  Ins.  Co.  v.  Weeks,  7  Mass.,  439.  Dubois  v. 
Dubois,  6  Cow.,  494.  Conant  v.  Bicknell,  1  Chip.,  50.  Dennie  v.  Harris, 
9  Pick.,  364.  3  Pet.,  292.  See  5  Pick.,  120.  Nor  can  goods  be  attached 
as  the  consignee's  while  they  are  in  transitu.  —  Lane  v.  Jackson,  5  Mass. 
Rep.,  157. 

Where  a  debtor  has  pledged  property  to  his  creditor  to  secure  the 
debt,  the  creditor  cannot  attach  other  properly  of  the  debtor,  in  an  action 
to  recover  the  debt,  without  first  returning  the  pledge. —  Cornwall  v.  Gould, 
4  Pick.,  448.  15  Wend.  R.,  218.  2  Gallis,  157.  4  Wash.  C.  C,  308. 
Cleverly  v.  Brackett,  8  Mass.,  150.  Contra,  Morse  v.  Woods,  5  N.  Hamp., 
300.      Chapman  v.  Cloud,  6  Ver7n.,  123. 

Tools  of  a  debtor  necessary  to  carry  on  his  trade,  are  exempt  from 
attachment.  —  Buckingham  v.  Billings,  13  Mass.  Rep.,  83.  Vide  Howard 
V.  Williams,  2  Pickering,  SZ.  Danforth  ct  al  v.  Woodward,  10  Pick.,  420. 
And  if  he  has  two  trades,  his  tools  of  both  are  exempt.  — //ryujarJ  v.  Wil- 
liams, 2  Pick.,  80. 

Furniture  belonging  to  A.,  in  the  use  of  B.,  cannot  be  attached  as  B.'s 
property. —  Walcott  v.  Pomeroy  et  al,  2  Pick.  Mass.  Rep.,  121.  Rising  v. 
Stanard,  17  Mass.  Rep.,  282. 

Sailor's  wages  not  yet  due  cannot  be  attached. —  Wentworthv.  White- 
more,  1  Mass.  Rep.,  471. 

An  attachment  of  the  stock  in  trade,  in  the  possession  of  the  osten- 
sible partner,  (where  there  is  a  dormant  partner,)  has  a  preference  to  a 
second  attachment,  by  another  person,  against  both  the  partners.— iortZ  v. 
Baldwin,  6  Pick.  Mass.  Rep.,  340.     Pierce  v.  Jackson,  6  Mass.  Rep.,  242. 

Goods  are  not  liable  to  be  attached  by  another  creditor,  consigned  for 
the  payment  of  debts,  if  the  assignee  has  promised  to  pay  the  debts.— 
Armour  v.  Cockburn  et  al,  \Q  Martin's  Jjouis.  Rep.,  666.  Gray  v.  Trafton, 
12  Martin's  R.,  702. 

An  attachment  does  not  lie  to  compel  the  delivery  of  a  specific  thing. 
— Hana  Syndics  v.  Loring,  11  Mart.  Lou.  Rep.,  276. 

Such  goods  and  cliattels  only,  that  can  be  lawfully  seized  on  execu- 
tion, are  liable  to  attachment. — Badlam  v.  Tucker,  I  Pick.,  399. 

Property  fraudulently  transferred,  may  be  attached  by  the  vendor's 
creditors,  while  it  remains  in  the  vendee's  possession.     But  not  after  the 


76  ATTACHMENT. 

vendee  has  sold  it,  or  it  has  been  attached,  or  seized  in  execution  as  his. 
—  Gihbs  r.  Chase,  10  Mass.,  130. 

If  a  man  by  paying  his  own  money,  procures  a  conveyance  of  land, 
or  transfer  of  a  mortgage  to  a  third  person,  he  has  no  attachable  interest 
in  the  estate  so  conveyed.  —  Kempton  v.  Cooke,  4  Pickg.,  30i5.  Reed  v. 
Woodman,  4  Green!/.,  400. 

Real  estate,  of  which  the  debtor  has  only  an  instantaneous  seizure, 
is  not  subject  to  attachment.  Nor  the  interest  of  a  mortgagee  before 
entry  for  condition  broken.  —  Chickering  v.  Lovejoy,  13  Mass.,  51.  Eaton 
V.  Whiting,  3  Pick.,  484.  Blanchard  v.  Calburn,  16  Mass.,  345.  Port- 
land Bank  V.  Hall,  13  Mass-,  207. 


HOW  LONG  AN  ATTACHMENT  REMAINS  IN  FORCE, 
^  AND   WHAT  WILL  OR  WHAT  WILL  NOT     * 

DISSOLVE  OR  DEFEAT  IT. 

1.  How  long  will  an  attachment  of  goods  remain  in  force  ? 

Thirty  days  after  final  judgment ;  and  by  final  judgment  is  meant  the 
last  judgment  before  a  review,  a  judgment  on  a  review  is  not  intended. 

In  computing  these  thirty  days,  the  day  of  the  rendition  of  judgment, 
is  to  be  excluded  ;  but  the  attachment  will  continue  only  thirty  days,  though 
the  last  day  be  Sunday. 

An  attachment  remains  in  force,  though  the  defendant  of  insolvency 
has  actually  issued  within  thirty  days  after  final  judgment. — Bingham  v, 
Pipoon,  9  Mass..  239.  Grosvnor  v.  Gold,  9  Mass.,  209.  Rockwood  v. 
Allen,  7  Ibid,  254.  Patterson  v.  Patten,  15  Ibid,  473.  Maxwell  v.  Ptke, 
2  Greenlf.,  8.  Revised  Statutes  of  Massachusetts,  eh.  90,  sec.  105.  Port- 
land Bank  V.  Maine  Bank,  11  Mass.,  204.  Alderman  v.  Phelps,  15  Mass. 
Rep.,  225. 

An  attachment  is  defeated  by  the  discontinuance  of  an  action,  when 
the  defendant's  estate  has  been  decreed  to  be  administered  in  the  insolvent 
courts.  — C/enJmen  v.  Allen,  4  N.  Hamp.,  389. 

Final  judgment  for  the  defendant,  tpAoyac^o,  dissolves  an  attachment, 
and  the  officer  cannot  detain  the  property,  though  the  plaintiff  sues  out  a 
writ  of  review. —  Clapp  v.  Bell,  4  Mass.  Rep.,  99.  Johnson  v,  Edson,  2 
Aik.,  299. 

An  attachment  of  partnership  property  on  a  writ  against  part  only  of 
the  firm,  is  vacated,  as  to  an  intermediate  attacher,  by  a  subsequent  attach- 
ment on  a  writ  against  them  all. — Denny  v.  Ward,  3  Pick.,  199. 

But  is  dissolved,  as  to  other  creditors,  by  inserting  a  count  in  the  writ, 
if  it  contained  none  when  it  was  served. 

And  by  filing  a  new  count  for  a  difi'erent  cause  of  action,  though  noth- 
ing is  recovered  on  such  coxini.  — Willis  v.  Crooker,  1  Pick.,  204.  Brig- 
ham  v.  Esta,  2  Pick.,  420. 

If  an  officer  mixes  goods  attached  by  him,  with  other  goods  of  the 
same  kind,  previously  attached  by  another  officer,  on  a  writ  against  the 
same  defendant,  so  that  they  cannot  be  identified,  he  loses  his  lien,  and 
his  attachment  is  defeated. 


ATTACHMENT.  77 

So,  if  he  leaves  the  goods  intermingled  with  other  goods  of  the 
debtor,  and  claims  the  whole,  so  that  another  officer  cannot  distinguish 
which  have  been  attached,  the  latter  may  attach  the  whole.  —  Sawyer  v. 
Merrill,  6  Pick.,  478.      Gordon  v.  Jenny,  16  Mass.,  465. 

Where  the  goods  of  two  persons  are  so  intermixed  that  they  cannot 
be  distinguished,  an  attachment  of  the  whole  on  a  writ  against  one,  is 
legal,  and  will  not  be  defeated,  as  to  the  goods  of  the  other,  until  they  are 
indentified. — Lewis  v.  Whittemore,  5  N.  Hamp.,  364.  Shumv^ayv.  Rutter, 
8  Pick.,  443. 

Insolvency  of  a  firm  will  defeat  an  attachment  of  their  property  by  a 
creditor  of  ope  of  the  firm.  —  Com.  Ba7ik  v.  Wilkins,  9  Greenl.,  28. 

An  attachment  is  not  dissolved  by  the  debtor's  death  after  judgment, 
though  he  die  '\n^o\vex\i.  — Bowman  v.  Stark,  6  N.  Hamp.,  459. 

An  attachment  is  not  dissolved  by  the  filing  of  a  new  count  for  the 
same  cause  of  action. — Miller  v.  Clarke,  8  Pick.,  414. 

A  decree  of  foreclosure  on  a  bill  brought  subsequent  to  an  attach- 
ment of  an  equity  of  redemption  will  not  affect  the  attaching  creditor's 
rights,  unless  he  is  made  a  party  to  the  suit. — Lyon  v.  Sanford,  5  Conn.  545. 

The  officer  must  retain  possession  of  the  goods  attached,  as  notice 
will  not  preserve  the  lien,  and  to  preserve  the  lien,  the  possession  must  be 
continued.  It  is  analogous  to  an  arrest  of  the  body  or  levy  upon  goods 
and  chattels  by  execution. —  Vinton  v.  Bradford,  13  Mass.  Rep.,  116. 
Badgley  v.  White,  4  Pick.,  9.  Mass.  Rep.,  395.  Lane  v.  Jackson,  5 
Mass.  Rep.,  157.  Watson  v.  Todd,  Ibid,  274.  Odiorne  v.  Colley,  2  N. 
Hamp.  Rep.,  66.  Moore  v.  Graves,  3  Ibid,  408.  United  States  v.  Cun- 
ningham et  al.,  4  Dall.,  358.  Barnes  et  al  v.  Billington  et  al.,  4  Days. 
Conn.  Rep.,  81.  Burrows  v.  Stoddard,  3  Conn.  Rep.,  168.  Taintor  v. 
Williams,  7  Conn.  Rep.,  271.  Chancellor  v.  Phillips,  4  Dall.  Penn.  R., 
213.     Hollister  v.  Goodale,8  Conn.  Rep.,  332. 


WHEN  AN  ATTACHMENT  WILL  OR  WILL  NOT  LIE. 

1.  Will  not  an  attachment  lie  against  the  master  of  a  vessel  for  goods 
lost  by  his  neglect  ? 

It  will. — Hunt  V.  Morris  et  al.,  4  Martinis  Louis.  Rep.,  517.  In  the 
above  case  it  was  held  by  the  court  that  the  master  and  owner's  of  a 
vessel  were  liable  to  an  attachment  at  the  suit  of  the  shipper,  for  goods 
lost  through  neglect. 

Matthews,  J.  This  is  an  obligation  clearly  arising  out  of  a  contract 
of  bailment ;  and  which,  in  conformity  with  a  proper  acception  of  the 
word  debt,  authorizes  the  plaintiff  to  have  his  attachment  against  the  pro- 
perty of  the  defendants. 

But  an  attachment  will  not  lie  for  s\dS\Aex.  —  Sergant  v.  Hembold,  1 
Harper's  S.  Ca.  Rep.,  219.  Cross  v.  Richardson,  2  Martin's  Lou.  Rep., 
323.  Baunv.  Thomason,  18  Martin's  Rep.,  583.  Nor  for  unliquidated 
damages.  — CZar^  v.  Wilson,  3  Wash.  C.  C.  U.  S.,  R.,  560.  Nor  where 
the  party  has  not  a  certain  interest.  —  Stewart  v.  Doughty,  9  Johns.  N.  Y. 
Rep.,  108.     Stark  \.  Parker,  2  Pick.  Rep.,  267.     Chandler  v.  Thriston, 


78  ATTACHMENT. 

10  Pick.  Mass.  Rep.,  205.  It  will  not  lie  against  an  absent  executor  or 
administrator. —  Wcytnan  et  al.  v.  Weyman's  Ex'rs.,  1  Harper^s  S.  Ca.  R., 
125.  Vide  2  Dull.,  73.  1  Johns.  Cos.,  372.  Nor  will  it  lie  for  one  joint 
complainant  against  another  who  has  received  more  than  his  proportion 
of  a  decree.— /ones  v.  Jones,  1  Hen.  Sf  Mumf.  Va.  R.,  3.  Nor  will  it 
lie  where  the  debt  is  not  due,  and  where  the  debtor  resides  out  of  the 
state. — McClintock  v.  Cairns,  17  Martin's  Lou.  R.,  450.  Chartress  v. 
Cairness  et  al.,  16  Martin's  P.,  1.  Nor  can  it  be  sustained  where  an  at- 
tachment issues  for  two  causes,  one  sufficient,  and  the  other  noi.— Bar- 
nard V.  Sebre,  2  Marshall  Ky.  Rep.,  151. 


PROCEEDING  IN  ATTACHMENT. 

1.  Should  not  an   attachment  state  every  thing  to  justify  the  proceed- 
ing ? 

It  should,  such  as  the  existence  of  the  debt,  the  absconding  of  the 
debtor,  or  his  privately  removing  from  the  county.  —  Plumpton  v.  Cook,  2 
Marshals  Kentucky  Rep.,  450.  Burnett  v.  Darnielle,  3  Calls.  Virginia 
Rep.,  358. 

But  it  need  only  be  so  special  as  to  bar  another  action  for  the  same 
cause. — Monroe  v.  Castleman,  3  Mar.  Ky.  Rep.,  400.  The  return  of  an 
attachment  should  state  to  whom  the  property  belonged. — Mason  v.  An- 
derson, 3  Monr.  Ky.  Rep.,  293. 

In  the  above  case,  Owsley,  J.,  a  question  made  by  the  assignment  of 
errors  involves  the  enquiry,  whether  or  not  the  return  made  by  the  sheriff 
upon  the  attachment  authorized  the  judgment  in  favor  of  Anderson.  The 
return  as  originally  made  did  not.  That  return  contained  no  statement 
that  the  property  attached  belonged  to  James  Johnson,  against  whom  the 
attachment  issued  ;  and  without  such  a  statement,  the  return  upon  an  at- 
tachment was  held  insufficient  in  the  case  of  Irons  v.  Allen,  Hard.,  44. 
The  sherifT  however  may  amend  his  return. 

On  process  of  attachment,  a  bond  for  a  less  sum  than  the  debt  is 
{^.i^X.^— Samuel  v.  Brite,  2  Marsh.  Ky.  R.,  317. 

The  death  of  the  principal  debtor  will  not  vitiate  the  proceedings 
against  the  garnishees.  —  Kennedy  v.  Ragouct,  1  Bay.  S.  Ca.  R.,  484. 

But  a  foreign  attachment  is  dissolved  upon  the  death,  of  the  debtor, 
and  the  issuing  of  commission  of  insolvency  against  his  estate. — Martin 
V.  Abbot,  1  Grccnl.  Me.  Rep.,  333.  So,  also  by  giving  special  bail. — 
Wilson  V.  Starr,  1  Har.  6f  Johns,  Md.  Rep.,  491. 

Where  an  officer  enters  a  store  and  declares  his  intention  to  attach 
the  goods,  and  locks  the  store  and  retains  the  key,  it  is  a  good  attach- 
ment.—  Gordon  v.  Jenny,  16  Mass.  Rep.,  465.  Baldwin  v.  Jackson,  12 
Mass.  R.,  131.      Denny  v.  Warran,  16  Mass.  R.,  420. 

An  actual  entry  on  real  estate  is  not  necessary  to  constitute  an  at- 
tachment.—Cros&y  v.  Allyn,  5  Greenl.  Maine  Rep.,  453.  Perrin  v.  Leo- 
verrit,  13  Mass.  R.,  128. 


ATTACHMENT.  79 

EFFECT  OF  AN  ATTACHMENT  AS  TO  RIGHTS  OF  THE 
OFFICER,  CREDITOR  AND  DEBTOR,  &c. 

1.  Does  an  attachment  change   the   estate  of  the  debtor  or  take  away 
his  power  of  alienation  ? 

It  does  not  ;  nor  does  the  creditor  acquire  any  property,  but  a  lien 
only  ;  and  the  debtor  may  convey,  subject  to  the  lien,  which  lien  the 
purchaser  may  discharge  by  paying  the.  debt  before  sale  on  execution,  or 
by  redeeming  estate,  that  is  by  law  redeemable.  —  Ludden  v.  Leavitt,  9 
Mass.,  105.  S.  P.  Dillenhack  v.  Jerome,!  Cow.,  294.  Bigelow  v.  Wilson, 
1  Pick.,  485.  Ladd  v.  North,  2  Mass.  517.  Lyon  v.  Sanford,  5  Conn., 
545.     Denny  v.Willard,\\  Pick.,  b2^. 

Personal  property  attached  is  at  the  officers  risk  while  the  lien  con- 
tinues, and  if  a  loss  occur  in  consequence  of  his  contracts  with  debtors, 
or  others,  he  must  be  the  loser. —  Tyler  v.  Ulmer,  12  Mass.,  163.  Philips 
V.  Bridge,  11  Mass.,  242.      Congdon  v.  Cooper,  15  Mass.,  14. 

But  capture,  however,  of  attached  proj^erty  by  a  public  enemy,  in 
time  of  war,  exonerates  the  officer,  if  the  common  consequences  of  cap- 
lure  follow.  — 15  Mass.,  14. 

When  an  officer  attaches  cattle  upon  mesne  process,  the  owner  must 
provide  for  their  support  at  his  peril. 

And  in  such  case  the  officer  who  attaches  them  is  answerable  to  the 
creditor  for  them  ;  and  his  apprehension  of  incurring  expenses  in  main- 
taining them,  will  not  excuse  him  for  not  retaining  them  when  attached. 
—  Tyler  v.  Ulmer,  12  Mass.,  163.     Sewall  v.  Matroon,  9  Mass.,  535. 

If  an  officer  incur  expense  in  supporting  cattle  attached  by  the  plain- 
tiff's order,  and  judgment  be  given  for  the  defendant  in  the  suit,  the 
plaintiff  is  liable  to  reimburse  the  officer. 

An  attaching  officer  having  the  special  property  in  the  goods,  may 
maintain  replevin,  trespass,  or  trover,  against  any  one  who  violates  his 
possession,  or  that  of  his  servant  or  bailee.  —  Phelps  v.  Campbell,  1  Pick., 
59.  Badlanv.  Tucker,  1  Pick.,  389.  Ladden  v.  Leavitt,  9  Mass.,  104. 
Pcrley  v.  Foster,  lb.,  112.  Warren  v.  Leland,  lb.,  265.  Gates  v.  Gates, 
15  Mass.,  310.      Gibbsv.  Chase,  10  Mass.,  125. 

The  officer  may  at  any  time,  while  the  attachment  is  in  force,  take 
the  attached  goods  from  the  possession  of  the  debtor  to  whom  the  re- 
ceipter  has  intrusted  them,  and  so  may  the  receipter  h\mse\L  —  Bo7id  v. 
Padclford,  13  Mass.,  394.      Carr  v.  Farely,  3  Fairf.,  328. 

An  officer  is  entitled  to  recover  of  a  delinquent  receipter,  the  full 
value  of  the  property,  and  not  merely  the  amount  of  the  debt,  as  he  is 
accountable  for  the  surplus  to  the  debtor.  — Si'^^eZ  v.  Hungtington,  2  New 
Hamp.,  142.      Catlin  v.  Lowry,  1  Chip.,  396. 

But  he  is  not  accountable  to  the  debtor  until  a  reasonable  time  has 
elapsed  for  recovering  it  of  the  receipter,  if  the  property  was  delivered 
to  him  by  the  debtors  consent.— 2  N.  Hamp.,  142. 

The  receipter  cannot  be  permitted  to  prove  in  a  suit  on  the  receipt 
given  by  him  that  the  goods  were  not  actually  attached.  — 2  Vern.,  209. 
Lowry  v.  Cady,  4  Verm.,  504. 


80  ATTACHMENT, 

The  lien  of  a  factor  cannot  be  superseded  by  an  attaching  creditor. 
— Rirkman  v.  Hamilton,  9  Martin's  Lou.  Rep.,  297. 

A  mortgagee  releasing  his  right  in  the  mortgaged  premises,  does  not 
destroy  his  lien  upon  the  land  acquired  by  attachment.  Nor  is  it  effected 
by  proceedings  under  the  bankrupt  act.  —  Lacy  et  al.  v.  Tomlinson,  5  Conn. 
Rep.,  77.  In^raham  v.  Phillips,  1  Days  Conn.  R.,  177.  And  in  Dahney 
V.  Greene,  4  Hen.  6f  Mum.  Va.  Rep.,  101,  it  was  held  by  the  court  that  a 
mortgagee  by  obtaining  a  judgment  at  law  for  his  debt,  and  purchasing  the 
mortgaged  property,  under  execution  thereupon,  does  not,  in  general,  de- 
prive the  mortgagor  of  the  right  of  redemption.  But  if  such  judgment 
and  execution  were  upon  an  attachment  against  the  mortgagor,  as  an  ab- 
sconding debtor,  attempting  to  defraud  the  mortgagee  of  his  security,  by 
removing  the  property  out  of  the  state,  he  shall  not  be  permitted  to  redeem 
under  the  influence  of  the  maxim,  "  that  he  who  hath  done  iniquity,  shall 
not  have  equity." 

An  attachment  is  a  lien  upon  a  note  in  the  hands  of  a  garnishee, 
whether  due  or  not.  So  it  is  of  money  in  the  hands  of  a  garnishee  on  a 
chancery  attachment,  and  operates  from  the  time  of  the  service  of  the 
process.  —  Stewart  v.  West,'  Garnishee  of  Janners,  1  Har.  and  Johns.  Md. 
Rep.,  536.  Kennedy  v.  Brent,  6  Cranch's  U.  S.  Rep.,  187.  Williamson 
et  al.  V.  Bowie  et  al.,  6  Mum.  Va.  Rep.,  176. 

Property  attached  cannot  be  mortgaged. — Harvey  v.  Grimes  et  al.,  8 
Martinis  Louis.  Rep.,  395. 

The  attachment  binds  the  goods  in  the  hands  of  the  garnishee  at  the 
time  of  the  attachment  is  levied,  or  at  any  time  afterwards.  —  Taylor  v. 
Gardiner,  2  Wash.  U.  S.  C.  C.  Rep.,  488.  Scire  facias  against  the  gar- 
nishee. The  attachment  was  laid  on  the  14th  of  September,  1807.  In 
answer  to  the  interrogatories  put  to  the  defendant  under  the  Act  of  As- 
sembly, he  stated  that  on  the  19th  of  September,  1807,  he  received  50 
crates  of  earthenware  belonging  to  William  Lees  :  that  Lees  was  under 
acceptances  to  a  large  amount,  which  the  defendant  had  been  obliged 
to  nay. 

Washington.  J.  This  is  a  hard  case  upon  the  defendant,  who  at  the 
time  of  the  attachment,  paid  these  bills  to  a  greater  amount  than  the  value 
of  Lees'  funds  in  his  hands.  But  the  law  in  this  state  is  too  strong  to 
be  resisted.  It  only  declares  that  the  goods  and  effects  of  the  absent 
debtor,  in  the  hands  of  the  garnishee,  shall  be  bound  by  the  attachment, 
but  that  the  defendant  to  the  scrie  facias  shall  plead  that  he  had  no  goods 
and  effects  of  the  debtor  in  his  hands  when  the  attachment  was  levied, 
nor  at  any  time  since,  on  which  the  plaintiff  is  to  take  issue  and  the  jury 
are  to  find  the  fact  put  in  issue  one  way  or  the  other. 

The  lien  of  a  factor  or  commission  merchant  cannot  be  supersed- 
ed by  an  attaching  creditor.  —  Rirkman  v.  Hamilton,  9  Martin's  Louis. 
Rep.,  297.     And  see  4  Dallas,  279.     4  Mass.  Rep.,  258.  263. 


ATTACHMKNT.  81 


ATTACHIMENT  AGAINST  ABSENT  AND  ABSCONDING 
,     DEBTORS  IN  DIFFERENT  STATES. 

NEW  YORK. 

1.  Is  not  the  attachment  law  of  New  York  a  legal  mode  by  which  a  title 
to  property  may  be  acquired  by  operation  of  law  ? 

It  is. — New  York  Revised  Stat.,  vol.  2,  p.  3 — 14. 

When  the  debtor,  who  is  an  inhabitant  of  New  York,  absconds,  or  is 
concealed,  a  creditor  to  whom  he  owes  one  hundred  dollars,  or  any  two, 
to  whom  he  owes  one  hundred  and  iifty  dollars,  or  any  three  to  whom  ho 
owes  two  hundred  dollars,  may,  on  application  to  a  judge  or  commissioner, 
and  on  due  proof  of  the  debt,  and  of  the  departure  or  concealment,  procure 
his  real  and  personal  estate  to  be  attached  ;  and,  on  due  public  notice  of 
the  proceeding,  if  the  debtor  does  not,  within  three  months,  return,  and 
satisfy  the  creditor,  or  appear  and  ofTer  to  contest  the  fact  of  having  ab- 
sconded, or  offe;-  to  appear  and  contest  the  validity  of  the  demand,  and 
give  the  requisite  security,  then  trustees  are  to  be  appointed,  who  become 
vested  with  the  debtor's  estate  ;  and  they  are  to  collect  and  sell  it,  and 
settle  controversies,  and  make  dividends  among  all  his  creditors  in  the  mode 
prescribed. 

From  the  time  of  the  notice,  all  sales  and  assignments  by  the  debtor, 
are  declared  to  be  void.  If  the  debtor  resides  out  of  the  state,  and  is  in- 
debted on  a  contract  made  within  the  state,  or  to  a  creditor  residing  within 
the  state,  although  upon  a  contract  made  elsewhere,  his  property  is  liable 
to  be  attached,  and  sold  in  like  manner  ;  but  the  trustees  are  not  to  be  ap- 
pointed until  nine  months  after  public  notice  of  the  proceedings. 

Perishable  goods,  other  than  vessels,  when  attached  under  the  ab- 
sconding debtor  act,  may  be  immediately  sold  and  converted  into  money  ; 
and  if  the  sheriff,  under  the  attachment,  seizes  property  claimed  by  third 
persons,  he  is  to  summon  a  jury,  and  to  take  their  inquisition  as  to  the  title 
to  the  property  claimed.  If  any  American  vessel  belonging  to  the  debtor 
be  attached  under  these  proceedings,  it  rnay  be  released  on  the  claimant 
of  the  vessel  giving  security  to  pay  the  amount  of  the  valuation  of  the 
vessol  to  the  trustees,  or  to  the  debtor,  as  the  case  may  be  ;  and  if  it  be  a 
foreign  vessel,  claimed  by  a  third  person,  the  attaching  creditor  must  give 
security  to  prosecute  the  attachment,  and  pay  the  dainagej,  if  it  should 
appear  that  the  vessel  belonged  to  the  claimant. 

It  has  been  decided,  that  a  creditor,  having  an  unliquidated  demand 
resting  in  contract,  is  a  creditor  within  the  absconding  debtor  act,  and 
competent  to  apply  for  the  attachment.  — Le««oa;  v.  HowJand,  3  Caines^ 
Rep.,  323.  This  was  under  the  act  of  1801,  and  the  New  York  Revised 
Act  of  1830,  covers  the  very  case. 

Any  creditor  may  proceed  against  an  absconding  or  concealed  debtor, 

being  an  inhabitant  of  the  state,  or  against  any  non-resident  debtor,  if  the 

contract  was  made  in  New  York  ;  but  if  the  contract  was  made  elsewhere, 

'then  the  creditor  must  be   a   resident  of  the    state. — New   York  Revised 

Statutes,  vol.  2,  p.  3,  sect-  1,  2,  6,  7.      Fitche's  Case,  2  Wend.,  219. 

11 


82  ATTACHMENT. 

2.  Is  it  not  sufficient  proof  by  witnesses,  that  they  believe  the  debtor 
resides  out  of  the  state  ? 

It  is.  —  Fitche's  Case,  2  Wend.,  298.     Johns.  CL,  186. 

The  right  to  sue  out  an  attachment  does  not  depend  on  a  change  of 
the  debtor's  domicil ;  but  it  may  issue  against  the  estate  of  a  debtor  noto- 
riously residing  abroad,  whether  permanently  or  temporarily. —  Thompson's 
Case,   1    Wend.,  43. 

There  must  be  evidence  that  the  defendant  is  indebted  within  the 
state,  either  by  siiowing  that  the  contract  was  made  here,  or  that  the  credi- 
tor resided  here. — Filche's  Case,  2   Wend.,  299. 

Proceedings  under  the  New  York  statute,  apply  to  all  cases  of  de- 
mands arising  on  contracts,  whether  in  strict  debt  or  damages  unliquidated. 
—  Lennox  v.  Huwland,  3  Caines,  323. 

Attachment  does  not  lie  against  an  administrator  for  a  demand  against 
his  intestate.  —  Hurd  <Sf  Scldon^s  Case,  9  Wendell,  465.  Jackson  v.  Wal- 
worth, 1  Johns.  Cos.,  372. 

The  court  may,  on  motion,  examine  whether  the  attachment  was  im- 
providently  issued,  and  review  the  order  granting  it,  and  if  it  is  found  to 
have  been  improvidently  granted,  may  award  a  supersedeas.  —  Lenox  v. 
Llowland,  3  Caines,  257.  McQueen  v.  Middletown  Manufacturing  Co.,  IG 
Johns.,  5.     Ex  parte,  Cldpman,  1   Wend.,  66. 

Debtors  imprisoned  in  New  York  in  a  state  prison,  for  a  term  less 
than  their  natural  lives,  or  imprisoned  in  any  penitentiary,  or  county  jail, 
for  a  criminal  offence,  for  a  term  more  than  one  year,  are  liable  to  the  like 
proceedings  against  their  estates,  as  in  the  case  of  absconding  debtors. — 
N.  Y.  Revised  Statutes,  vol.  2,  p.  15.  The  court  in  which  proceedings 
under  the  absconding  debtor's  act  are  pending,  has  an  equitable  jurisdiction 
over  all  claims  between  the  trustees  and  the  creditors. 

The  trustees  are  liable  to  be  called  to  account  at  the  instance  of  either 
the  debtor  or  creditor.  So,  the  assignees  under  the  insolvent  act  are  de- 
clared to  be  trustees  ;  and  where  there  are  two  trustees,  either  of  them 
may  collect  the  debts  ;  and  where  there  are  more  than  two,  the  powers 
appertaining  to  the  trust  may  be  exercised  by  any  two  of  them.  But  no. 
suits  in  equity  are  to  be  brought  by  the  assignees  of  insolvent  debtors, 
without  the  consent  of  a  majority  of  the  creditors  in  interest,  unless  the 
sum  in  controversy  exceeds  $500.  They  are  to  sell  the  assets  at  auction, 
and  may  allow  a  reasonable  credit  on  good  security.  They  are  to  redeem 
mortgages,  and  pledges,  and  conditional  contracts,  and  settle  accounts,  and 
compound  with  debtors,  under  the  authority  of  the  officer  appointing  them. 
They  are  to  call  a  general  meeting  of  the  creditors,  and  the  mode  of  dis- 
tribution is  specially  declared.  They  are  to  declare  dividends  ;  and  divi- 
dends unclaimed  for  a  year,  are  to  be  deemed  relinquished.  They  are  to 
account,  upon  oath,  and  are  allowed  a  commission  of  five  per  cent,  on  all 
monies  received  ;  and  they  may  be  discharged  from  their  trust  by  the 
proper  authority,  on  their  own  application,  and  new  assignees  appointed 
in  their  stead.  — A^ettt  Yor/S;  Revised  Statutes,  vol.  2, p.  39  —  51. 


ATTACHMENT.  83 


AGAINST  WHAT  PROPERTY  MAY  ATTACHMENT  ISSUE. 

1.   Can  the  property  of  one  partner  be  taken  under  attachment  ? 

The  possession  of  the  property  cannot,  that  belongs  to  the  other 
partners,  but  the  interest  of  the  absconding  partner  may  be  taken  and  sold. 
— Matter  of  Smith,  16  /.  R.,  102. 

Property  held  by  the  debtor,  as  tenant  in  common,  though  in  posses- 
sion of  his  co-tenant,  may  be  attached  and  sold ;  but  only  his  individual 
moiety  will  be  sold,  and  the  purchaser  becomes  a  tenant  in  common  with 
the  co-tenant. — Merserau  v.  Norton,  15/.  R.,  179. 

Any  property  which  may  be  taken  under  execution,  may  be  seized 
under  an  attachment,  as  monies  and  bank  notes. — Handy  v.  Dobbin,  12 
J.  R.,  220. 

WHO  MAY  ATTACH,  AND  WHEN. 

A  non-resident  creditor  cannot  sue  out  an  attachment  against  the  es- 
tate of  an  absent  debtor. — In  the  Matter  of  Fitzgerald,  2  Caines*  Rep., 
318.     Ex  parte,  Schroeder,  6  Cow.,  603. 

But  he  may  against  the  estate  of  an  absconding  iehtor.  —  Robbins  v. 
Cooper,  6  /.  C.  R.,  186.     Ex  parte,  Caldwell,  5  Cow.,  293. 

AGAINST  WHOM  AN  ATTACHMENT  LIES. 
WHAT  PROPERTY,  &c. 

An  attachment  does  not  lie  against  a  corporation.— McQueen  v.  Mid- 
dletovm  Manufac.  Co.,  16  /.  i?.,  5. 

An  attachment  does  not  lie  against  persons  claiming  merely  by  right 
of  representation.  —  Murray  v.  Walsworth,  1  J.  C,  372. 

But  where  the  debtors  were  named,  some  as  trustees,  some  as  execu- 
tors, &:c.,  held,  after  a  lapse  of  time  and  acquiescence  of  parties,  that 
these  would  be  deemed  mere  words  of  description,  so  as  to  support  the 
proceedings. — Murray  v.  Walsworth,  1  /.  C,  372. 

TRUSTEES  ARE  APPOINTED,  &c. 

t 
1.  May  not  the  court  enquire  into  the  merits  of  the  controversy,  on  re- 
port of  the  referees  ? 

They  may  ;  but  will  require  a  strong  case  to  induce  them  to  set  aside 
the  report.  —  Cox  v.  The  Trustees  of  Pearce,  7  J.  R.,  298. 

Under  the  act  relative  to  absconding,  concealed,  and  non-resident 
debtors,  proceedings  may  be  had  by  the  trustees  of  one  non-resident  debtor, 
for  the  collection  of  a  debt  due  from  another  non-resident  debtor.  — /«  the 
Matter  of  Broivn,  21   Wend.,  316. 

The  decisions  of  trustees,  under  the  absconding  debtor  act,  in  deter- 
mining the  amounts  due  to  the  several  creditors,  will  be  reviewed  by  the 


84  ATTACHMENT. 

supreme  court ;  if  the  trustees  err  in  the  application  of  a  principle  of  law, 
the  court  will  correct  the  error;  but  if  they  err  on  a  question  of  fact  or 
opinion,  as  in  the  assessment  of  unliquidated  damages,  their  decision  will 
not  be  set  aside,  unless  clearly  against  the  weight  of  evidence.  —  In  the 
Matter  of  Negus,  7  Wetid.,  499. 

The  trustees  are  vested  only  with  the  interest  of  the  debtor.  —  Matter 
of  Smith,  16  /.  R.,  102. 

The  trustees  may  avail  themselves  of  the  statute  of  limitations,  to  the 
same  extent  that  the  debtor  might  do,  if  an  action  were  brought  against 
him.  — Peckv.  Randall,  1  /.  C,  165. 

The  trustees  cannot  be  sued  at  law,  before  the  demand  has  been 
proved  or  adjusted,  and  the  dividend  declared.  The  proper  remedy  against 
the  trustees  is  by  petition  to  the  court,  who  will  either  compel  the  trustees 
to  do  their  duty,  or  advise  them  in  doubt  and  difficulty. —  Pec^  v.  Randall, 
1  /.  R.,  165. 

WHAT  CREDITORS  MAY  COME  IN,  AND  WHEN. 

To  entitle  a  creditor  to  a  dividend,  he  must  have  been  such  at  the  time 
of  the  first  publication  of  the  proceedings  under  the  act  pursuant  to  the 
second  section.  After  the  second  dividend,  no  creditor  can  be  received  to 
prove  his  debi.  — Matter  of  Depeyster,  5  Cow.,  266. 

Debts  barred  by  the  statute  of  limitations  are  not  entitled  to  be  paid. 
But  the  exhibition  of  the  creditor's  claim  to  the  trustees  is  equivalent  to 
the  commencement  of  a  suit,  so  as  to  prevent  the  statute  from  running. — 
Peck  V.  Randall,  1  /.  R.,  165. 

When  the  debtor  shows  that  he  had  not  absconded,  or  was  not  con- 
cealed, a  supersedeas,  with  costs,  will  be  granted,  though  the  creditor  had 
reason  to  believe  the  contrary.  —  6'.  P.  Chipman^s  Case,  1  Wend.  R.,  66. 
Bunches^  Case,  9  Wend.,  473.  Covenhoveii's  Case,  1  Johns.,  174.  Cas- 
cadeus'  Case,  Coleman,  116.  Cox  v.  Trustees  of  Pearce,  7  Johns.,  298. 
Caldwell,  b  Cow-,  293.  Chipman,  1  Wend.,&Q).  Depeyster  s  Case,  5  Cow., 
266.  Dudley  v.  Staples,  15  Johns,  196.  Fitzgerald's  Case,  2  Caines, 
318.  Fosga'te  v.  Mahon,  16  Johns.,  162.  Field  v.  McVickar,  9  Johns., 
130.  Fort  V.  Fort,  9  Wend.,  442.  Matter  of  Fitch,  2  Wend.,  298.  Fort 
(^  Barnhart  v.  Fort,  9  Wend.,  442.  Ex  parte,  Gilbert,  7  Wendell,  490. 
Hollinghead's  Case,  6  Wend.,  553.  Handy  v.  Dobbin,  12  Johns.  R.,  220. 
Holmes  V.  Remscu.  20  Johns.,  229.  Huhbell  v.  Ames,  15  Wendell,  372. 
Hurd  Sj-  Seldon's  Case, 9  Wend.,  465.     Ex  parte,  Haynes,  i8  We?id.,  6il . 

ATTACHMENTS  AGAINST  ABSCONDING  AND  ABSENT 

DEBTORS  IN  PENNSYLVANIA. 

DOMESTIC. 

1.  Is  not  the  sheriff  who  takes   goods  by  virtue  of  a  domestic  attach- 
ment liable  to  the  same  extent  of  damages  as  a  stranger  ? 

He  is.  — I^yle  v.  Barker,  5  Binn.,  457. 

A  domestic  attachment  will  be  dissolved  where  the  debt  upon  which 
it  issued  was  not  due  at  the  time  it  was  laid.— Praii  v.  Myer,  1  Browne's 
Rep.,  282, 


ATTACHMENT.  85 

But  not  when  it  was  issued  against  an  insolvent  debtor,  under  the 
act  of  1723  on  the  application  of  the  defendant  afterwards  to  enter  spe- 
cial bail :  provided  it  issued  on  due  grounds.  ~  Benncr  v.  Cofgreace,  4 
Yeates,  231.  See  also  following  cases.  — Jewel  v.  Heive,  3  Watts,  144. 
Wray  v.  Gilmore,  1  Miles,  75.  Thurmeyssan  v.  s^oathier,  4  Watts,  422. 
Cowlan  V.  De  Lisle,  1  Browne,  291.  Gibson  y.  McLaiighlan,  1  Ibid,  292. 
Holliiigsworth  v.  Guardians,  9  iS.  cj-  7v.,  94.  Wilhehn  v.  Riley,  5  /J/J, 
137.  Roges  V.  Coppinger,  2  Yeates,  277.  Anhrim  v.  tyootfworc/,  4 
Rawle,  345. 


"  WHO  ARE   LIABLE  TO  A  FOREIGN  ATTACHMENT,  AND 
WHEN  A  DOMESTIC  ATTACHMENT  MUST  ISSUE." 

1.  Must  not  a  man  be  considered  an  inhabitant  while  he  remains  in 
the  state,  though  avowing  an  intention  to  withdraw  from  it  ? 

He  must.  — iyZe  v.  Foreman,  1  Dall.,  480.  See  also  following  cases. 
—  Mulligan  V.  Aughenbough,l  Penn.,  178.  Taylor  v.  Knox,  1  DalL,  158. 
BarneiVs  Case,  1  DalL,  153.  Nailor  v.  French,  4  Yeates,  241.  Kennedy 
V.  Bailey,  3  Yeates,  55.  Bainbridge  v.  Alderson,  2  Browne,  51.  i^ed- 
Mjood  V.  Consequa,  Ibid,  62.  Caldwell  v.  Barclay,  1  DalL,  305.  Pringle 
V.  5/acA,  2  Da//.,  97.     .Ba^Ae//  v.  Co?rt.  /n^.  Co.,  15  5:.  4"  iJ.,  173. 


FOREIGN  ATTACHMENT. 

WHAT  PROPERTY  IS  LIABLE  TO  FOREIGN  ATTACHMENT 

AND  WHEN  AN  ASSIGNMENT  WILL  DEFEAT  IT. 

1.  Can  debts  due  to  a  partnership  be  attached  in  a  foreign  attachment, 
to  answer  the  separate  debt  of  a  deceased  partner  ? 

They  cannot.— Mc Comb  v.  Dunch,  2  DalL,  73.  Contra,  McCarty  v. 
Emlem,  2  DalL,  277.     2  Yeates,  190. 

A  chose  in  action  which  has  been  equitably  assigned  is  not  subject 
to  the  operation  of  a  foreign  attachment,  as  the  property  of  the  assignor. 
—  United  States  v.  Vaughan,  3  Binn.,  394.  Caldwell  v.  Vance,  3  Binn., 
400.  See  also  following  cases.  — Cra?^/iai7  v.  Nothagil,  Peters^  C.  C, 
249.  Nathans  v.  Commonwealth  of  Virginia,  1  DalL,  77.  Caignett  v. 
Gilbaud,  2  Yeates,  35.  Walker  v.  Gi^^>5,  2  Da//.,  211.  1  Yeates,  255. 
McCarty  v.  Emlen,  2  Da//.,  77.  2  Teaie^,  190.  iio^^  v.  Clarke,  1  Da//., 
254.  Sharpless  v.  l^Fe/^^,  4  Da//.,  279.  Bank  of  N.  America  v.  McCall, 
3  Binney,  338.  i¥«7«e  v.  Moreton,  6  5m«.,  353.  Ludlow  v.  Bingham,  4 
Da//.,  47.     Moore  v.  Spackman,  12  S.  6f  R.,  291. 


86  ATTACHAIKNT. 

FOR  WHAT  DEMANDS  AND  IN  WHAT  COURTS  A  FOREIGN 
ATTACHMENT  LIES. 

1.   Does  a  foreign  attachment  lie  in   the  circuit   court  of  the   United 
States,  a<Tainst  the  efiects  of  an  inhabitant  of  the  United  States  ? 

It  does  not.  —  HoUingsworth  v.  Adams,  2  Dalls.,  396. 

But  it  will  lie,  in  that  court,  against  the  effects  of  an  inhabitant  of  a 
foreio-n  country. — Fisher  v.  Consequa,  2  Browne^s  Appendix,  26.  2  Wash. 
C.  d,  382. 

A  legacy  given  to  a  feme  covert  is  not  subject  to  this  process  in  a 
suit  of  her  husband's  creditor. — Dennison  v.  Nigh,  2  Watts,  90.  Robin- 
son V.  Woelper,  1   Whar.,  179. 

Nor  a  legacy  in  the  hands  of  an  executor  for  the  debt  of  the  legatee. 
—  Shewed  v.  Keene,  2  Whart.,  332.  Barnett  v.  Weaver,  lb.,  418.  Ross 
V.  Kinney,  2  Rawle,  227.  See  also  following  cases. —  Piscataqua  Bank 
V.  Turnley,  1  Miles  312.  MidUkerv.  Aughenbaugh,  1  Penn.,  117.  Fisfyer 
V.  Consequa,  2  Wash.  C.  C,  382.  Appx.  28.  Redwood  v.  Consequa,  2 
Brovme,  62.  Jacobby  v.  Goggel,  5  S.  <Sf  R.,  450.  Clarke  v.  Wilson,  3 
Wash.  C.  C,  560.     Downing  v.  Phillips,  4  Feafe^,  275. 

GARNISHEE'S  RIGHTS  AND  LIABILITIES. 

1.  Where  the  attachment  is  laid  in  the  hands  of  a  third  person,  does 
not  interest  cease  until  it  is  dissolved  ? 

It  does. —  Willing  v.  Consequa,  Peters^  C.  C,  521. 

A  garnishee  is  not  liable  for  interest  during  the  period  in  which  the 
attachment  is  pending,  unless  there  has  been  fraud  or  collusion,  or  an  un- 
reasonable delay  occasioned  by  the  conduct  of  the  garnishee.  —  Fitzgerald 
V.  Caldwell,  2  Ball,  215.  5.  C.  1  Yeates,  274.  S.  P.  Updegraffv. 
Spring,  11  (S.  4"  ^-1  190-  See  also  following  cases. — Myres  v.  Urich,  1 
Binn.,  25.  Sickman  v.  Lapsley,  \Z  S.  6f  R.,  224.  Willing  \.  Consequa, 
Peters-  C.  C,  521.  Willing  v.  Bleecker,  2  S.  <^  R.,  221.  Taylor  v. 
Gardner,  2  Wash.  C.  C,  4881  Parker  v.  Farr,  2  Browne,  332.  Cheon- 
gwo  V.  Jones,  3  Wash.  C.  C,  359. 


PLEADINGS,  PRACTICE  AND  EFFECT  OF  JUDGMENT  IN 
FOREIGN  ATTACHMENT. 

1.  Is  it  not  too  late  to  move  to  quash  an  attachment  after  judgment  has 
been  regularly  entered  upon  it  ? 

It  \%. —  Whiteside  v.  Oakman,  1  Ball.,  294. 

The  liability  of  bail  given  to  dissolve  an  attachment  is  to  the  amount 
of  his  recognizance,  and  he  will  not  be  relieved  on  paying  the  sum  sworn 
to  by  the  plaintiff  on  a  rule  to  show  cause  why  the  amount  should  not  be 
reduced,  —  Fetterman  v.  Hopkins,  5  Watts,  539. 


Attachment.  "         87 

The  death  of  the  defendant  after  final  judgment  does  not  dissolve  the 
attachment. — Fitchv.  Ross,  4  8.^  R.,  557. 

The  process  of  domestic  attachments  is  provided  by  statute  against 
absconding  and  concealed  debtors,  and  resident  debtors  who  are  absent. 
Trustees  are  appointed  and  the  proceeds  rateably  distributed  among  all 
the  creditors  who  come  in  and  prove  their  demands.  — Par Jon^'  Digest, 
277,  282. 

The  proceedings  and  remedy  are  analogous  to  the  provisions  in  New 
York.  The  process  of  foreign  attachment,  is  for  the  exclusive  benefit  of 
the  attaching  creditor,  and  it  may  issue  at  the  suit  of  any  creditor,  resi- 
dent or  non-resident. — Mullikeii  v.  Augkbaugh,  1  Penn.  R.,  117.  It  issues 
against  the  estate,  real  and  personal,  of  non-resident  debtors,  and  of 
debtors  confined  for  crimes.  Process  may  be  awarded  against  any  per- 
son who  has  property  or  efi'ects,  or  money  of  the  debtor  in  his  posses- 
sion, and  the  attachment  binds  all  the  estate,  real  and  personal  of  the 
debtor,  in  his  own  hands,  or  in  those  of  his  trustee,  debtor,  or  garnishee. 
Pardons^s  Digest,  A5,  46.435.  See  ai^o  following  cases. —  Graighle  v. 
Motnagel,  Peters'  C.  C,  245.  Moyer  v.  Lobengier,  4  Watts,  390.  4 
Rawle,  100.  Vienne  v.  McCarty,  1  Dall,  154.  Taylor  v.  Knox,  1  Dall., 
158.  Eldridge  v.  Robinson,  4  S.  cj-  R.,  548.  Redwood  v.  Consequa,  2 
Browne,  78.  Mallet  v.  Fausera,  A  S.  (Sf  R.,  543.  Steinmetz  v.  Nixon,  3 
Yeates,  285.  Ojiiel  v.  Chew,  1  Dall.,  379.  Penman  v.  Gardner,  A  Yeates, 
6.  Kearney  v,  McCullagh,  5  Binn.,  389.  Mittenberger  v.  Lloyd,  2  Dall., 
79.  Cookson  v.  Turner,  2  Binn.,  453.  1  Binn.,  226.  Pancake  v.  Harris, 
10  .S.  6f  R.,  109.  McGraph  v.  Dorfeuille,  2  Browne,  101.  Cramond  v. 
Trustees  of  the  Bank  of  The  United  States,  4  S.  (^  R.,  147.  Adlwn  v. 
Yard,  1  Rawle,  163.  "Vanuxum  v.  Lockwood,  1  Yeates,  493.  Brealsford 
y.  Meade,  1  Yeates,  488. 


ATTACHMENTS  AGAINST  ABSCONDING  AND  ABSENT 
DEBTORS  IN  SOUTH  CAROLINA. 

DOMESTIC. 

1.  Are  books  of  account  liable  to  domestie  attachment  so  as   to  create 
a  lien  on  the  debts  due  to  the  absconding  debtor  ? 

They  are  not.— Ohors  v.  Hill,  3  McCord,  338. 

Nor  can  such  attachment,  it  seems,  be  levied  on  land. —  Boyce  v. 
Owenes,  2  McCord,  208.  Nor  be  set  aside  on  motion  merely.— 1  Ibid, 
332. 

A  magistrate  has  no  authority  under  the  act  of  1788,  to  issue  an  at- 
tachment against  the  goods  of  one  actually  out  of  the  state,  but  only 
against  the  goods  of  those  who  conceal  themselves,  or  are  in  the  act  of 
moving.  —  Blakeley  v.  Bradford,  1  Bay.,  361. 

There  are  three  cases  in  which  a  magistrate  may  issue  attachments, 
1.  Where  the  defendant  is  about  to  remove  his  efi'ects.  2.  Where  he  is 
removing  out  of  the  county  privately  ;  and  3.  Where  he  so  absconds  and 
conceals  himself  that  the  ordinary  process  of  the  law  cannot  be  served 


88  ATTACHMEN'T. 

upon  h'lm. —  Hagood  v.  Hunter,  df  Frazier  v.  The  Same,  1  McCord's  Re- 
ports, 511. 

If  a  blank  bond  be  signed,  sealed,  and  delivered,  and  afterwards 
filled  up,  it  is  no  deed,  and  when  on  issuing  an  attachment  the  magistrate 
took,  a  bond  signed  in  blank,  which  he  afterwards  filled  up  and  lodged  in 
the  clerk's  office,  it  was  held  to  be  void. — Penninter  v.  McDaniel,  1  IliWs 
Rep.,  267. 

An  attachment  can  only  be  considered  in  the  light  of  a  suit  or  action 
at  law,  and  like  all  other  remedies,  its  want  of  propriety  or  efficacy  must 
be  made  to  appear  in  a  regular  course  of  pleading';  a  short-hand  method 
of  quashing  by  motion  a  remedy  given  by  law,  would  place  in  the  hands 
of  the  court  a  dangerous  power,  the  exercise  of  which  would  be  as  odious 
to  the  community  as  it  would  be  troublesome  to  the  judge. —  Harris  v. 
Trapp.      Grisham  v.  Dale,  2  N.  ^  M.  Rep.,  l30. 

A  third  person,  though  a  judgment  creditor,  cannot  set  aside  the  lien 
of  an  attachment  on  account  of  irregularities  in  issuing  and  suing  the  at- 
tachment, the  same  having  been  waived  by  the  defendant  in  attachment. 
—  Kincaid  v.  Neill,  3  McCord  Rep.,  201. 


FOREIGN. 

1.  Has  not  the  first  writ  of  attachment  lodged  in  a  sheriff's  office,  the 
first  lien  on  the  goods  of  an  absent  debtor  ? 

It  has,  though  a  second  writ  of  attachment  is  first  served  on  the  gar- 
nishee.—  CuUahan  v.  Hallowdl,  2  Bay.,  8. 

Judgment  by  default  may  be  taken  against  a  garnishee  in  attachment 
for  want  of  an  appearance,  as  in  other  cases.  —  Gracy  v.  Coates,  2 
McCord,  224. 

Attachments  may  issue  out  of  the  admiralty  courts  of  the  United 
States  against  the  effects  of  an  absent  debtor,  so  as  to  make  him  a  party 
to  the  suit.  —  Bouysson  v.  Miller,  Bee,  186. 

It  is  the  process  of  attachment  which  gives  the  party  the  lien  on  the 
absent  debtor's  goods,  and  not  the  judgment  rendered  on  li.—  Stephen  v. 
Thayer,  2  Bay,  272. 

A  garnisliee  in  attachment  is  entitled  to  the  same  defence  against  the 
plaintiff,  which  he  would  have  against  the  absent  debtor  if  he  were  present 
and  suing  to  recover  the  supposed  (iiehl.  — Matins  v.  Clarke,  2  Rep.  Con. 
Ct.,  456. 

The  court  will  not  set  aside  a  judgment  obtained  against  a  garnishee 
who  fails  to  make  a  return,  after  a  copy  of  the  vvrit  and  notice  to  make  a 
return  have  been  served  upon  him.  — JDwran^  v.  Staggers,  2  N.  ^  M.,  488. 

Process  by  attachment  does  not  lie  in  an  action  for  slander. —  5'er- 
geant  v.  Helmhold,  Harper,  219. 

A  defendant  who  has  been  made  a  party  in  the  court  of  common 
pleas,  by  a  foreign  attachment  against  his  goods,  and  who  resides  in  an- 
other state,  can,  under  the  act  of  congress  of  1789,  transfer  the  proceed- 
ings to  the  circuit  court  of  the  United  States  for  the  district  where  such 
attachment  issued.  — JV/ar^m  v.  Thompson,  3  McCord,  167. 


ATTACHMENT.  89 

The  court  will  quash  the  writ,  on  motion,  at  the  first  term,  after  the 
return,  iC  the  defendant  was  in  the  state  at  the  time  the  attacluncnt  is- 
sued.— Degman  v.  Wheeler,  2  N.  t^  M.,  323. 

The  defendant  cannot  appear  by  attorney  and  defend  the  action, 
without  first  putting  in  special  bail  — Acock  v.  Linn,  Harper,  368.  Fife 
V.  Clarke,  2  McCord,  352.  And  this  rule  extends  to  the  defendant's  wife, 
who  attempts  to  appear  and  defend.  — Fa««  v.  Frederick.  2  Bailey,  503. 

No  attachment  shall  issue  until  a  bond  has  been  given  for  double  the 
amount  for  which  it  issues.  — Boyd  v.  Boyd,  2  N.  Sf  M.,  124. 

Partnership  property  may  be  attached  for  the  individual  debt  of  one 
of  several  co-partners.  — ^'c/ia^.ziV/  c^  Co.  v.  /.  <Sf  C.  Bolton,  2  McCord's 
Rep.,  478. 

After  pleading  to  the  merits  it  is  too  late  to  set  aside  proceedings  in  at- 
fachmeiit  on  the  ground  that  the  bond  entered  into  by  plaintiffs'  on  the  is- 
suing of  the  writ  does  not  conform  to  the  direction  of  the  attachment 
act. —  Grey  v.  Young,  Harp.  Rep.,  38. 

Process  by  attachment  will  not  lie  against  an  absent  executor  or  ad- 
ministrator.—  C.  cj-  /.  T.   Weyman  v.  Murdock,  [bid,  125. 

A  party  aggrieved  by  the  operation  of  an  attachment  improperly  sued 
out  or  conducted,  is  not  obliged  to  seek  redress  on  the  bond  given  by  the 
plaintiff  in  attachment,  but  may  proceed  at  common  law  —  Saunders  v. 
Hughes,  Brev.  Mss.  Rep. 

The  distribution  share  of  an  absent  debtor  of  personal  estate  in  the 
hands  of  the  executor  is  not  the  subject  of  attachment. —  Young  v.  Young, 
2  Hill  Rep.,  425.  In  this  state  their  foreign  attachment  law  is  predicted 
on,  and  has  received  construction  from  the  custom  of  London.  —  Smith  v. 
Posey,   2   Hill's  R.,  471.     See   also  following  oases. —  West  v.  Tupper, 

1  Bailey,  193.      Tavel   v.  Barre,   2  McCord,  201.      Schepler  v.  Garristan, 

2  Bay.,  224.  Forrettier  v.  Guerrincad,  1  McCord,  304.  Westmorland  v. 
Tippens,  1  Bailey,  514.     Richardson  v.    Whitfield,  1  McCord,  403.      Ste- 

phenv.  Thayer,  2  Bay.,  272.  2  Bailey,  213.  Lorick  v.  Richardson,  1 
McCord,  185.  Creagh  v.  Deleane,  1  N.  cj-  M.,  189.  Stoney  v.  McNeil, 
Flarper,  172.  Foster  v.  Jones,  1  McCord,  116.  Turner  v.  McDaniel,  1 
Ibid,  552.  Richardson  v.  Whitfield,  Ibid,  403.  Shrewsbury  v.  Pearson, 
Ibid,  331.     Browne  v.  Minus,  Ibid,   80.      Schatziel  v.  Bolton,  2  Ibid,  478. 


ATTACHMENTS  AGAINST  ABSENT  AND  ABSCONDING 
DEBTORS  IN  NORTH  CAROLINA. 

1.  Must  not  the  sheriff  take  the  property  into  his  actual  possession  on 
an  attachment  ? 

He  must. — 2  Hayio.,  73. 

A  garnishee  is  entitled  to  make  every  defence  against  the  plaintiff 
in  the  attachment  that  he  could  make  against  his  creditor  were  he  the 
plaintiff. —  i2w6'5eZ  v.  Hinturn,  1  Murph.,  468. 

Monies  in  the  hands  of  the  sheriff  or  of  the  clerk  of  a  court  cannot 
be  attached. — Alston  v.  Clay,  2  Haywood's  R.,  271.  Overton  v.  Hill,  1 
Murph.,  47. 

12 


90  ATTACHMENT. 

But  a  surplus  money  in  the  hands  of  a  sheriff  raised  by  execution,  is 
the  property  of  the  defendant  in  the  execution,  and  held  by  the  sheriff 
in  his  private  and  not  in  his  official  capacity,  and  is  liable  to  attachment 
in  the  hands  of  the  sheriff  and  by  the  creditors  of  such  defendant.  — Orr 
V.  Mc Bride,  2  Car.  L.  R.,  257. 

A  garnishee  may  be  compelled  to  answer,  though  no  summons  has 
been  served  upon  him.  —  Salmon  v.  Smoot,  Martin,  72. 

An  original  attachment  is  only  used  to  compel  an  appearance,  and 
where  sureties  are  given,  they  are  to  all  purposes  like  bail,  and  may  sur- 
render.—  Hightower  v.  Murray,  1  Hayw.,  21. 

The  plaintiff  need  not  svi^ear  positively  to  the  amount  of  his  debt  or 
damage,  it  is  sufficient  if  he  swear  to  the  best  of  his  knowledge  and  he- 
\iQi.—Powel  V.  Hampton,  C.  c^  A^-,  86.  299. 

The  attachment  law  makes  notes  not  yet  due,  whether  given  for 
money  or  specific  articles,  subject  to  that  process.  And  it  is  no  objection 
that  the  notes  are  given  for  the  purchase  of  property,  in  which  the  debtor 
had  only  an  equitable  interest.  Whether  the  property  be  liable  to  exe- 
cution is  not  the  criterion  to  determine  whether  it  be  attachable  ;  other- 
wise the  attachment  law  could  not  operate  upon  bonds  and  simple  con- 
tract debts.  As  soon  as  the  purposes  of  the  trust  deeds  were  satisfied, 
there  was  but  one  equity  remaining  and  that  was  in  the  debtor  whose  right 
to  the  money,  had  it  been  received  could  have  been  enforced  at  law. 
— Peace  v.  Jones,  3  Mur.,  256.  Property  in  the  hands  of  an  administra- 
tor, which  will  belong  to  the  debtor  as  a  distributee,  after  settlement  of 
the  administrator's  accounts  cannot  be  attached.— -E//20iif  v.  Newby,  2 
Hawkes,  21. 

On  an  attachment  against  one  partner  for  his  separate  debt,  only  the 
separate  property  of  that  partner  can  be  seized,  the  partnership  effects 
cannot  be  taken.  —  Jarvis  v.  Heyer,  4  Dev.,  367. 

No  attachment  can  be  levied  upon  property  held  by,  or  debts  due  to, 
absconding  debtors,  as  trustees  for  others.  —  Simpson  y.  Harry,  1  Dev.  6f 
Bat.,  202. 

Negotiable  securities  may  be  attached,  as  "  money  due  to  the  de- 
fendant," in  the  attachment.  —  Skinner  v.  Moore,  2  Ibid,  138. 

The  attachment  law,  does  not  require  the  plaintiff  to  swear  positively 
to  the  amount  of  his  debt. — Powel  v.  Hampton,  Conf.  Rep.,  86.  S.  P. 
Bicker s taff  V.  Bellinger,  Ibid,  299. 

A  creditor  who  is  a  citizen  of  this  state,  may  attach  the  property  of 
his  debtor  found  here,  though  such  debtor  is  a  citizen  of  New  York,  and, 
by  an  insolvent  law  of  that  state,  his  property  has  been  assigned  for  the 
general  benefit  of  his  creditors. — Bizzell  v.  Bedient,  2  Car.  L.  R.,  254. 

A  non-resident  creditor  cannot  attach  the  property  of  his  debtor  in 
this  state,  when  the  latter  is  also  not  a  resident  of  this  state,  and  has  not 
absconded  nor  removed  to  avoid  the  ordinary  process. — Broghil  v.  Well- 
hum,  4  Dev-,  511. 

An  original  attachment  is  not  only  intended  to  compel  appearances, 
and  the  sureties  given  or  repleving  are  exactly  to  all  purposes  as  bail,  and 
may  surrender  their  principal. — Hightower  v.  Murray,  1  Hayw.,  21. 

An  action  of  debt  will  not  lie  on  a  replevy  bond  given  under  the  at- 
tachment law.  A  scire  facias  is  the  proper  remedy. — Summers  v.  Parker, 
N.  C.  Term  R.,  147. 


ATTACHMENT,  91 

Where  an  attachment  was  executed  and  returned  lo  a  court  on  the 
same  day  on  which  it  was  issued  the  return  is  irregular,  but  is  helped 
by  the  statute  of  Joefails,  after  verdict  or  judgment  by  default.  —  Powcl  v. 
Hampton,  Conf.  R.,  86. 

If  an  officer  executing  an  attachment  returns  "  executed  and  re- 
turned," without  specifying  on  what  he  has  levied,  the  return  is  informal, 
but  is  cured  by  the  same  statutes. — Ibid. 

The  attachment  laws  are  to  be  strictly  construed,  and  the  plaintiff 
must  perform  all  the  conditions  required,  to  entitle  him  to  the  benefit  of 
them  ;  hence  he  must  not  only  give  bond  and  make  affidavit,  but  must  see 
that  they  are  returned.  —  State  Banks  v.  Hinton  cj-  Others,  1  Dev.,  397. 

If  a  plaintiff  in  attachment  fails  to  give  a  bond  or  file  an  affidavit ;  it 
should  be  pleaded  in  abatement  ;  it  cannot  be  taken  advantage  of  by  writ 
of  error. — Powelv.  Hampton,  Conf.  R.,  86.  *S.  P.  Buckerstaff  \ .  Dellinger, 
Conf.  Rep.,  299. 

In  an  original  attachment,  any  defect  in  the  affidavit  is  waived  by 
appearance  and  pleading  in  chief.  —  Gar?n(?/i  v.  Barringer,  2  Devereux  ^ 
Bat.,  502. 

When  a  sheriff  has  returned  that  a  garnishee  is  not  to  be  found,  and 
the  garnishee  accidently  comes  into  court  on  other  business,  he  shall  an- 
swer to  his  garnishment.  —  Salmon  v.  Smoot  Sj-  Others,  Mar.,  72. 

A  person  summoned  as  a  garnishee  may  avail  himself  of  any  defence, 
which  he  could  make,  where  he  sued  by  his  creditor. — Russel  v.  Hinton, 
1  Mur.,  468. 

An  administrator  is  not  liable  to  answer,  as  garnishee,  whether  his 
intestate  was  not  indebted  to  the  defendant  in  the  attachment. —  Welsh  v. 
Gurley,  2  Hayw.,  334.      Gee  v.  Warwick,  2  Hayw.,  354. 

But  a  garnishee  may  be  asked  whether  he  does  not  owe  as  heir  as 
devisee.  — /^ic?. 

A  garnishee  cannot  be  asked  whether  he  has  paid  a  bond,  which  the 
defendant  in  the  attachment  held,  and  which  was  more  than  twenty  years 
Q\d..  —  Ihid,  358.      S.  C.  2  Hayw.,  398. 

A  garnishee  may,  after  judgment  against  the  principal,  be  examined 
on  points  left  unfinished  on  his  first  examination. — Mallet  v.  London,  2 
Hayw.,  158. 

Creditors  of  garnishees  have  no  legal  right  to  interpose  for  the  pur- 
pose of  preventing  such  garnishees  from  confessing  themselves  indebted 
to  the  absconding  debtor.  Such  confession  will  not  affect  their  claim 
against  the  garnishee. 

But  where  specific  property  is  levied  upon  as  the  property  of  an  ab- 
sconding debtor,  claimants  have  a  right  to  interpose  for  the  purpose  of 
protecting  their  present  enjoyment  of  it,  and  for  preventing  any  injury  that 
might  attend  its  removal.  —  Simpson  v.  Harry,  1  Dev.  <Sf  Bat.,  202. 

A  party  may  interplead  to  an  attachment  at  any  time  before  final 
judgment.— Doffion  v.  Brush,  1  Car.  L.  R.  236. 

The  suing  out  ^f.  fa.  after  final  judgment  in  case  of  attachment  is 
a  waiver  of  the  lien  created  by  the  levy  of  attachment. — Den.  ex  dem., 
Ameyet  v.  Backhouse,  3  Mur.,  63. 

A  judgment  rendered  on  an  original  attachment  cannot  be  avoided  or 
reversed,  or  treated  as  a  nulity,  by  a  mere  stranger  for  error  on  irregu- 


92  ATTACHMENT. 

larity  in  the  proceedings  upon  which  the  judgment  was  rendered. — -Skin- 
ner V.  Moore.  2  Dev.  tj-  Bat.,  138. 

There  is  no  law  in  the  statute  book,  which  more  demands  a  strict 
construction  than  the  attachment  law  ;  and  very  trival  objections  to  the 
process,  and  to  the  jurisdiction  as  to  the  persons,  and  the  like,  are  to  be 
listened  to,  if  brought  forward  at  the  proper  time. — Skinner  v.  Moore,  2 
Dev.  <Sf  Bat.,  138. 

A  garnishee  may  have  a  writ  of  error  upon  a  judgment  against  him- 
self or  the  defendant  in  the  attachment.  — i7aw^/tion  v.  Allen,  Conf.  Re- 
ports, 157. 

In  the  case  of  non-resident  debtors  it  is  a  general  principle,  that  all 
the  proceedings  are  construed  strictly  for  the  greater  safety  of  the  ab- 
sentee, to  whom  notice  may  not  have  reached.  —  State  Bank  v.  Hinton,  1 
Dev.  N.  Car.  Rep.,  397. 

In  the  case  of  an  absconding  debtor,  the  creditor  need  not  be  a  resi- 
dent, but  in  the  case  of  an  attachment  against  a  non-resident  debtor,  he 
must  be. — North  Car.,  Stat.  1777,  ch.  2. 


ATTACHMENTS  AGAINST  ABSENT  AND  ABSCONDING 
DEBTORS  IN  KENTUCKY. 

1.  Will  not    an   attachment  be   quashed  if  issued  before  the   bond  is 
given  1 

It  will,  though  on  the  same  Aa.y .  — Hutchinson  v.  Ross,  2  Marsh.,  349. 

If  the  bond  be  for  less  than  double  the  debt  demanded,  the  attach- 
ment is  illegal. — Martin  v.  Thompson,  3  Bibb.,  252. 

An  attachment  can  be  sued  out  in  that  county  only  in  which  the  de- 
fendant is,  or  last  was,  an  inhabitant. — Lanier  v.  Grant,  Hardin,  95.  Mc 
Meekin  v.  Johnso?i,  2  Dana,  459. 

The  property  of  an  absconding  debtor  is  subject  to  an  attachment, 
although  it  is  in  the  possession  of  anolher.  — Hutchinson  v.  Ross,  3 
Marsh.,  491. 

If  a  debtor  abandons  the  country,  and  leaves  effects  in  the  possession 
of  others,  a  court  of  equity  will  entertain  jurisdiction  of  the  case,  and 
afford  the  appropriate  relief. — Moore  v.  Simpson,  5  Litt.,  49. 

An  attachment  does  not  bar  the  absent  debtor's  action,  nor  his  as- 
signee's, against  the  garnishee,  if  it  be  not  issued  from  the  county  where 
the  debtor  resides,  or  last  resided.  —  Roberts  v.  Roberts,  1  Marsh.,  247. 

An  attachment  must  state  the  nature  of  the  demand  so  specially,  that 
a  recovery  thereon  will  bar  a  subsequent  demand  for  the  same  cause. — 
Hickman  v.  Jest.  Pr.  Deer.,  352.  See  also,  following  cases.  —  Kennedy  v. 
Dillon,  1  Marsh.,  354.  Hopkins  v.  Suttles,  Hardin,  95.  Poage  v.  Poage, 
3  Dana,  579.  Davis  v.  Edwards,  Hardin,  342.  Shipp  v.  Davis,  Ibid,  65. 
Plumpton  V.  Cooke,  2  Marsh.,  450.  Monroe  v.  Castleman,  3  Marsh.,  400. 
Hutchinson  v.  Ross,  1  Litt. ,217.  Dickyv.  Evans,2  Litt.,  131.  McDan- 
iel  V.  Sappington,  Hardin,  94.  Rees  v.  Bishop,  3  Bibb.,  95.  Harper  v. 
Bell,  2  Bibb.,  221.  Barnard  v.  Sebre,  2  Marsh.,  151.  McLortyv.  Davis, 
Pr.  Dec,  69.     Scott  v.  Coleman,  5  Litt.,  349.     Pyle  v.  Cravens,  4  Litt., 


ATTACHMENT.  93 

20.  Lawhtr  v.  Clay,  Ibid,  284.  Campbell  v.  Scutt,  5  Monr.,  388.  Paul 
V.  Rogers,  5  Monr.,  169.  McDaniel  v.  Sappington,  Hardtn,  94.  Irons  v. 
Allen,  Hardin,  44.  Craig  v.  Saven,  Hardin,  46.  Stockton  v.  //a//,  i/ar- 
(//«,  162.  Owens  v.  Starr,  2  Z,i7f.,  230.  McMeehin  v.  Johnson,  2  Dana's 
Rep.,  459. 

ATTACHMENTS  IN  VIRGINIA. 

In  Virginia,  the  domestic  attachment  lies  against  the  absconding 
debtor,  and  also  against  non-resident  debtors,  for  debts  not  exceeding  $20, 
and  against  a  garnishee,  though  the  debt  be  not  due.  The  foreign  attach- 
ment lies  against  absent  debtors,  and  resident  debtors  of  the  foreign  debtor, 
may  be  prosecuted  as  garnishees.  —  1  Reoised  Code,  edit.  1814,  p.  60.  2 
Ibid,  98.  It  is  grounded  upon  two  facts  ;  non-residence  of  the  debtor,  and 
his  having  effects  in  Virginia,  and  the  proceeding  is  conclusive  against 
parties  and  privies. — Martin  v.  Chandler,  2  Brockenbrough,  125. 

The  defendant  may  enter  into  bail,  and  plead,  without  appearing  in 
person.  —  Smith  v.  Pearce,  Gilmer,  44. 

Where  the  surety  to  a  bond  has  removed  from  the  country,  leaving 
the  principal  within  it,  the  obligee  may  proceed  against  the  surety  as  an 
absent  defendant,  and  attach  any  effects  or  debts  he  may  have  in  the  state. 
Loop  V.  Sumners,3  Rand.,  511.  See  also,  following  cases. — Peter  v.  But- 
ler, 1  Leigh,  285.  Dunlop  v.  Keith,  1  Leigh,  430.  Hejfernan  v.  Grimes, 
2  Leigh,  512.  Tiernans  v.  Schley,  2  Leigh,  25.  Wilson  v.  Koontz,  7 
Cranch,  202.  Mankin  v.  Chandler,  2  Brock.,  125.  Williamson  v.  Bowie, 
6  Mumf.,  176.  Smith  v.  Jetiny,  4  H.  4  M.,  440.  Wilson  v.  Wilson,  1 
H.  Sf  M.,  16.  Kennedy  V.  Brent,  Q  Cranch,  187.  McKin  v.  Fulton,  6 
Call.,  106.  Smith  v.  Pierce,  Gilmer,  34.  Smithy.  Pierce,  6  Mumf.,  585. 
Barnett  v.  Darnielle,  3  Call.,  413.  George  v.  Blue,  3  C'aZ^,  455.  Mantz 
V.  Hendley,  2  H.  ^  M.,  308.  Templeman  v.  Fauntleroy,  3  Rand.,  434. 
Clay  V.  Nielson,  5  Rand.,  596.  Dickenson  v.  McCraw,  4  Rand.,  158. 
Hallam  v.  Jones,  Gilmer,  142.      Shaver  v.  White,  6  Mumf.,  110. 

The  foreign  attachment  lies,  though  both  the  creditor  and  debtor  reside 
out  of  the  state.  —  Williamson  v.  Bowie,  6  Mumf.  R.,  176. 


ATTACHMENTS  AGAINST  ABSENT  AND  ABSCONDING 
DEBTORS  IN  CONNECTICUT. 

1.  Is  not  a  person  an  absconding  debtor,  who  shuts  himself  up  from  his 
creditors  ? 

He  is. — Ives  v.  Curtis,  2  Root,  133. 

Goods  in  the  hands  of  a  fraudulent  grantee  may  be  attached.  — /S^arr 
V.  Treacy,  2  Root,  528.     Pruden  v.  Leavenworth,  Ibid,  129. 

Also  of  lands  held  under  a  fraudulent  conveyance.— jRi>/ey  v.  Wells, 
5  Conn.,  431. 

An  executor  cannot  be  held  as  garnishee  in  foreign  attachment  for  a 
legacy  payable  to  the  dehtox.—  Winchell  v.  Allen,  1  Conri.,  385. 


94  ATTACHMENT. 

Money  in  the  hands  of  a  sheriff,  &c.,  cannot  be  taken  on  attachment. 
—  Glary  v.  Sheppard,  1  Root,  544. 

The  declarations  of  an  absconding  debtor  are  not  evidence  for  the 
plaintiff  in  foreign  attachment. — Enos  v.  Tuttle,  3  Conn.  Rep.,  247.  But 
tbe  deposition  of  such  absconding  debtor  is  admissible  for  the  garnishee 
to  prove  the  effects  attached  belongs  to  a  stranger. — Enos  v.  Tuttle,  3 
Conn.,  24:1 . 

The  eflects  and  debts  of  absconding,  or  absent  debtors,  in  the  hands 
of  any  agent,  factor,  trustee,  or  debtor,  may  be  attached  by  any  creditor  by 
the  process  of  foreign  attachment. — Statutes  of  Conneticut,  1838,  j!j.  287. 
It  lies  also  against  persons  imprisoned  for  debt,  who  shall  not,  within  three 
months,  be  admitted  to  take  the  poor  man's  oath  ;  and  debtors  discharged 
from  imprisonment,  are  to  be  deemed  absconding  debtors,  so  as  to  allow 
the  creditor  to  proceed  against  their  goods  and  effects,  in  the  hands  of  their 
attorney,  agent,  trustee,  or  debtor. — Statutes  of  Conn.,  1838, />.  293,  294. 

If  money  in  the  garnishee's  hands  is  taken  from  him  by  a  compulsory 
process,  he  will  be  excused. — Hooper  v.  Benson,  1  Root,  545.  Gagor  v. 
Watson,  11  Conn.,  168.      Thompson  v.  Steioart,  3  Conn.,  171. 

A  debt  due  to  an  absconding  debtor,  by  assignment  from  a  third  per- 
son, is  attachable. — Apthorp  v.  Lockwood,  1  Root,  198. 

A  garnishee  will  be  allowed  his  expenses  in  defending  his  principal. 
— Barber  v.  Andrews,  2  Root,  250. 

The  precise  period  when  a  debt  is  attached  is  the  time  of  the  service 
of  the  writ. — Fitch  v.  Waite,  5  Conn.,  117. 

A  garnishee,  if  required,  must  appear  in  court,  and  answer  on  the 
scire  facias. — By  art  v.  Stewart,  1  Root,  149. 

A  public  officer,  or  agent,  is  not  liable  to  a  foreign  attachment. — Spald- 
ing V.  Imlay,  1  Root,  551.  Stillman  v.  Isham,  11  Conn.,  124,  See  also, 
following  cases. — Knox  v.  Protection  Insurance  Co.,  9  Conn.,  430.  Fitch 
V.  Waite,  5  Conn.,  117.  Pollord  v.  Dwight,  4  Cranch,  421.  Benton  v. 
Dutcher,  3  Day,  436.  Stanton  v.  Holmes,  4  Day,  87.  Enos  v.  Tuttle,  3 
Conn.,  27.  Wadsworth  v.  Marsh,  9  Conn.,  481.  Starr  v.  Corrington,  3 
Conn.  R.,  278,  Green  v.  Gillet,  5  Day,  485.  Coit  v.  Ball,  Kirby,  149. 
Edwards  v.  Baldwin,  2  Root,  23.  Strong  v.  Barlow,  Kirby,  376.  Fowler 
V.  Spellman,  1  Root,  295.  De  Witt  v.  Baldwin.  Hubbard  v.  Browne,  1 
Root,  276.  Woodhridge  v.  Winthrop,  Ibid,  557.  Laight  v.  Tomlinson,2 
Root,  233.  Wilford  v.  Jones,  Ibid,  324.  Cuttler  v.  Baker,  2  Day,  498. 
Beach  V.  Swift,  2  Conn.,  269.  ToJ(^  v.  Hall,  10  Conn.,  544.  Barber  v. 
Hartford  Bank,  9  Conn  ,  407.  Boardman  v.  Stewart,  1  iioof,  473.  Smith 
V.  Sillman,  8  Conn.,  115. 


ATTACHMENTS  AGAINST  ABSCONDING  AND  ABSENT 
DEBTORS  IN  TENNESSE. 

1.  Is  not  attachment  the  same  process  in  equity  as  at  law? 

It  is  ;  and  will  not  lie  where  the  defendant  can  be  arrested  on  ordi- 
nary process. —  Tervill  v.  Rogers,  3  Hayw.,  203. 

Money  levied  by  a  sheriff  on  execution,  cannot  be  attached  in  his 
hands. — Pawley  v.  Gaines,  1  Overt.,  208. 


ATTACHMENT.  95 

Bank  stock  cannot  be  condemned  nor  sold  on  execution,  nor  can  it  be 
the  subject  of  garnishment — Nashville  Bank  v.  Raggsdale,  Peck,  296. 

The  court  may,  at  any  time  during  the  term,  set  aside  a  judgment  by 
default  against  a  defendant  in  attachment,  on  his  replevying  the  property, 
and  offering  to  plead. — Roberts  v.  Stewart,  1  Yerg.,  390. 

Attachment  is  a  process  to  compel  the  appearance  of  the  defendant. 
— Terrillv.  Rogers,  3  Hayw.,  203.  Cheatham  v.  Trotter,  Peck,  198.  If 
levied  on  property  by  actual  seizure,  or  on  sums  of  money  in  the  hands  of 
the  debtor  of  the  defendant,  he  is  before  the  court,  and  if  he  does  not  ap- 
pear, replevy,  and  plead,  judgment  may  be  taken  against  him. — Peck,  198. 

To  authorize  an  original  attachment,  one  of  the  parlies  must  be  an 
inhabitant  of  the  state. — Kincaid  v.  Francis,  Cooke,  49. 

A  debt  that  is  not  due  cannot  be  attached. —  Childress  v.  Dickens,  8 
Yerg.,  113. 

A  garnishee's  answer  is  conclusive  as  to  his  liability  ;  if  he  state  that 
he  gave  the  defendant  a  negotiable  note  or  single  bill,  but  does  not  know 
who  holds  it,  or  whether  it  is  assigned  or  not,  he  must  be  discharged.— 
Huffv.  Mills,  7  Yerg.,  42. 

An  attachment  is  a  lien  on  the  property  from  the  return. —  Vincen  v. 
Huddleston,  Cooke,  254. 

No  judgment  can  be  entered  against  a  garnishee  until  judgment  against 
the  defendant.  —  Seawell  v.  Murphy,  Cooke,  478. 

An  affidavit  that  the  defendant  has  removed  himself,  so  that  the  ordi- 
nary process  of  law  cannot  be  served  on  him,  without  stating  that  he  has 
absconded,  is  not  sufficient  to  authorize  an  attachment. — McCullagh  v. 
Foster,  4  Yerg.,  162. 

The  creditor,  in  the  case  of  an  absconding  debtor,  need  not  be  a  resi- 
dent ;  but  in  the  case  of  an  attachment  against  a  non-resident  debtor,  he 
must  hQ.—  Tennesse  Act  of  1794.     1  Yerger's  R.,  101.     6  Ibid,  473. 

No  attachment  will  lie  against  property,  when  both  creditor  and  debtor 
are  non-residents,  unless  judgment  had  been  first  obtained,  and  execution 
issued  in  the  courts  of  the  jurisdiction  where  the  defendant  was  a  resident ; 
or  in  cases  in  which  personal  service  of  process  cannot  be  made,  nor  an 
attachment  at  law  lie.  In  these  special  cases,  the  non-resident  creditor 
may,  by  bill  in  chancery,  cause  stocks,  and  choses  in  action,  and  other 
property  belonging  to  the  non-resident  defendant,  or  held  in  trust  for  him, 
to  be  applied  to  his  debt. — Stat.  1801,  ch.  6.  Stat.  1832,  ch.  11.  Garret 
V.  Scott,  9  Yerger,  244.  Where  the  reason  of  their  statute  law  is  clearly 
stated,  and  justly  vindicated.  > 


ATTACHMENTS  AGAINST  ABSCONDING  AND  ABSENT 
DEBTORS  IN  MARYLAND. 

1.  Can  the  defendant  appear  without  bail  upon  the  return  of  an  attach- 
ment ? 

He  cannot. — Campbell  v.  Morris,  3  Har.  ^  McHen.,  535. 
An  equity  of  redemption  may  be  taken  by  attachment. — Pratt  v.  Law, 
9  Cranch,  456. 


96  ATTACHMENT. 

Where  a  debt  has  been  recovered  by  attachment  in  a  foreign  court, 
the  recovery  is  a  protection  to  the  debtor,  as  garnishee,  against  his  original 
creditor. —  Taylor  v.  Phelps,  1  Har.  Sf  Gill,  492.  See  also,  following  ca- 
ses.—Z)aw«c?.yon  V.  Beatty,  3  Hnr.  <Sf  McHen.,  594.  Barney  v.  Peterson.  6 
Har.  (Sf  J.,  182.  Owings  v.  Norwood,  2  Har.  <^  J.,  96.  Plater  v.  Hep- 
burn, 3  Har.  Sf  McHenry,  434.  Wallace  v.  Forrest,  2  Har.  <Sf  McHenry, 
261.  Fitzhugh  V.  Hellen,  3  Har.  ^  J.,  206.  Bar7iey  v.  Patterson,  6  Har. 
6f  J.,  182.  Yerhy  v.  Lockland,  6  Har.  6f  J.,  446.  Shivers  v.  Wilson,  5 
i/ar.  <Sf  J.,  130.  illcCoy  v.  Sioan,  2  i7rtr.  4"  J.,  344.  Burk  v.  McClaim, 
1  //«r.  «^  McHen.,  236.  Wallace  v.  Patterson,  2  Har.  cj-  McHenry,  463. 
Londuman  v.  W'"«750w,  2  Harris.  ^  J.,  379.  Stewart  v.  VFe6'<,  /iij,  536. 
Arrants  v.  Dumagin,  1  //ar.  <^  McHen.,  218.  Wilson  v.  Starr,  1  i/ar. 
rf-  /.,  491.  Campbell  V.  Morris,  3  /:/a?-.  c^  McHen.,  535.  Smith  v.  Green- 
leaf,  4  /Z)i(^,  291.  Thom.son  v.  Towson,  1  /6i(/,  504.  Brook  v.McNamara, 
1  /iiJ.  80.  <S»?i77i  V.  Gilmrr,  4  i/«r.  <^-  /.,  177.  Frasher  v.  Evcrhart,  3 
GiZ/  4-  Johns.,  234.  Guldsborough  v.  Orr,  8  Wheaton,  217.  i^arry  v. 
foyZes,  1  Pef.,  311.  Harding  v.  Hull,  5  H.  <^  J.,  478.  Guttre  v.  Lang- 
ton,  3  f/ar.  4-  McHen.,  178. 


ATTACHMENTS  AGAINST  ABSCONDING  AND  ABSENT 
DEBTORS  IN  NEW  JERSEY. 

1.  Is  not  an  attachment  dissolved  by  the  entering  of  bail  to  the  action  ? 

It  is. — Dickerson  v.  Simms,  Coxe,  199.  See  also,  following  cases. — 
Trenton  Bankijig  Company  v.  Havcrstick,  6  Halst.,  171.  Ci^y  Bank  v. 
Merritt,  1  Greene,  131.  Branson  v.  Shihn,  1  Greene,  250.  Croxal  v. 
Hutchings,  7  Halst.,  84.  Jejfery  v.  PFooZ/ey,  5  Halst.,  123.  See  Coa:e, 
199.  WootZwart/ v.  Woodward,  4  Halst.,  115.  Cananv.  Carryell,  Coxe, 
3.  Dickerson  v.  Simms,  Coxe,  199.  Peacock  v.  Wildes,  3  Halst.,  179. 
Harris  v.  Leonard,  4  Halst.,  58.  Lu7nmis  v.  Boo7i,2  Penn.,  734.  Reeves 
v.  Johnson,  7  Halst.,  29.  ^w^im  v.  Wade,  2  Penn.,  997.  Cory  v.  Lewis, 
2  aSo«/A,  846.  jB^rry  v.  CaZ/e/,  1  Halst.,  179,  ilfown^  v.  ii/y,  2  Halst., 
83.  Neale  v.  Cooke,  5  Halst.,  337.  Garwood  v.  Garwood,  A  Halst-,  193. 
Cory  v.  Letvis,  2  South  Rep.,  846.  TFoo(/t/;arc?  v.  Woodward,  5  Halst.,  1. 
Livingston  v.  Smith,  5  Pe^,  90.  Curtis  v.  Hollingshead,  2  Greene,  402. 
PFe/5/i  v.  Blackioell,  2  Greene,  344.     Ayres  v.  Bartlett,  2  Green,  330. 

Jn  New  Jersey,  the  attachment  issues  by  any  creditor,  foreign  or  do- 
mestic, against  absconding  and  non-resident  debtors,  in  which  last  case  it 
is  called  a  foreign  attachment.  It  reaches  all  the  debtor's  property  and 
effects  in  the  possession  of  the  garnishee  or  debtor's  debtor.  The  property 
attached  is  distributed  rateably  among  all  the  creditors  who  come  in  on 
duo  notice  ;  and  in  this  respect  it  resembles  the  New  York  attachment 
law. — Elmer'' s  Digest,  20  —  31. 


ATTACHMKNT.  97 


DECISIONS    IN  1840  AND  1841    IN  THE   STATES    OF   TEN- 
NESSE,  ILLINOIS,  VERMONT,  NEW  YORK,   LOUIS- 
IANA, OHIO,  AND  MAINE. 

A  surplus  in  the  hands  of  the  late  sheriff  arising  from  the  sale  of 
lands  after  payment  of  all  executions,  may  be  attached. — Jaquettes  AdnCr. 
V.  Palmer  6f  Wife,  2  Harrington's  Rep.,  144.  A.  D.,  1841.  The  law 
is  the  same  in  Tennessee.  —  Atkinson  v.  Tucker,  Humphry''s  Rep.,  vol.  1, 
p.  .300.     A.  D.,  1841. 

A  corporation  cannot  be  attached  as  a  garnishee.  —  Holland  Sf  Craw- 
ford V.  Leslie  <^  White,  2  Harrigtons  Rep.,  306. 

A  note  not  dui",  af  the  time  of  attachment  laid  cannot  be  set-off. — 
Edward  v.  Dclaplaine' s  Garnishee,  2  Harrington' s  Rrp.,  322. 

Debts  in  the  hands  of  an  administrator  cannot  be  attached ;  neither 
can  a  dsbtor  of  the  estate,  under  administration,  be  garnished. — Marvel  et 
al.,  garnishees  v.  Houston's  Ex'rs.,  2  Harrington's  Rep.,  349. 

In  order  to  enable  the  owner  or  consignee  of  a  vessel  atta'^hed  under 
the  "  Act  authorizing  the  seizure  of  boats  and  other  vessels  by  attachment," 
to  take  an  appeal  from  the  judgment  of  a  justice  of  the  peace  in  such 
ca^e,  he  should  make  himself  a  party  defendant  to  the  suit,  before  the  jus- 
tice. On  the  trial' of  the  right  of  property  levied  on  oy  attachment,  the 
writ  of  attachment  and  return  thereon,  are  admissible  in  evidence. —  The 
Schooner  Constitution  v.  Nelson  Woodworth,  1  Scammon's  Rep.,  511. 
Sheldon  v.  Rsihleu  et  ah.  Ibid,  519.     A.  D.,  1841. 

An  attachment  bond  which  do'-i-  not  describe  the  court  from  which 
the  process  is  to  be  issued,  or  to  which  it  is  to  be  returned,  or  the  term  of 
the  court,  is  fatally  defective,  and  a  judgment  rendered  by  default  in  such 
a  case,  will  be  reversed  on  writ  of  eixor.  — Lawrence  v.  Yateman  et  al.,  2 
Scammon's  Rep.,  17.     A.  D.,  1841. 

Where  an  officer  attaches  a  horse,  and  uses  the  same  sufficiently  to 
pay  for  the  keeping,  he  cannot  sustain  an  action  against  the  attaching 
creditor,  for  the  pay  for  such  keeping. — Dean  v.  Bailey,  2  Vermont  Rep., 
142.      A.  D.,  1841,  by  Weston. 

To  constitute  an  attachment  of  personal  property,  it  is  unnecessary 
the  officer  should  either  by  himself  or  his  servant,  take  and  maintain  the 
actual  custody  and  control  of  the  property. 

This  may  be  done  without  touching  the  property,  by  such  means  as 
will  exclude  all  others  from  the  custody,  or  will  give  timely  and  unequiv- 
ocal notice  of  the  custody  of  the  attaching  officer.  — Lyon  v.  Rood,  2  Ver. 
Rep.,  233. 

There  is  nothing  in  the  attachment  law  which  precludes  a  defendant 
from  availing  himself  (on  a  motion)  of  any  defer;  jc  irregularity  in  the 
process  of  attachment. — Harper  v.  Scuddy,  McMullan's  P^ep.,  vol.  \,p. 
264.     A.  D.,  1841. 

A  statute  of  one  of  the  states  of  the  Union,  authorizing  proceedings 
against  absconding  debtors,  and  an  assignment  of  their  property  for  the 
benefit  of  their  creditors,  being  in  the  nature  of  a  bankrupt  law,  the  assign- 
ment does  not  work  a  legal  transfer  of  the  properly  of  the  debtor,  so  as  to 
13 


98  ATTORNEY. 

render  invalid  a  conveyance  of  property  made  by  him,  in  another  state,  to 
a  citizen  of  such  state,  for  a  bona  fide  consideration  ;  and  such  assignment, 
in  one  state,  not  being  obligatory  upon  the  citizens  of  another  state  is  not 
binding  upon  the  citizens  of  the  state  in  which  the  proceedings  are  had,  in 
respect  to  property  conveyed  to  them  by  the  debtor,  in  another  state.  It 
was  accordingly  held,  that  the  property  of  an  absconding  debtor,  taken  by 
him  from  this  state,  and  transferred  by  him  in  another  state,  in  satisfaction 
of  a  judgment  there  rendered  against  him,  was  not  subject  to  the  control 
of  the  trustees  of  his  estate,  after  the  property  was  brought  back  to  this 
state,  although  he  and  the  creditor  to  whom  the  transfer  was  made,  were 
at  the  time  residents  of  this  state,  and  the  transfer  was  made  after  the 
publication  of  the  notice  that  an  attachment  had  issued.  —  Johnson  ^Miller 
V.  Hunt  et  ah,  23  WendelVs  N.  Y.  Rep., p.  87.     A.  D.  1841. 

An  attachment  is  dissolved  on  bonding  the  property  attached.  The 
plaintiff  then  looks  to  the  bond,  and  not  to  the  property,  to  satisfy  his  de- 
mand. If  he  fails  in  his  suit,  the  bond  is  discharged. — Dorr  et  al  v.  Ker- 
shaw et  al,  18  Louisiana  Rep.,  57.     A.  D.  1841. 

The  act  of  1826,  which  declares,  that  in  cases  where  the  debt  is  not 
yet  due,  and  the  creditor  swears  his  debtor  is  about  to  remove  his  property 
out  of  the  state  before  said  debt  becomes  due,  "  an  attachment  may  issue," 
does  not  apply  to  steamboats  and  vessels,  which,  from  their  nature,  must 
necessarily  be  taken  from  their  state  in  their  regular  business. — Rnssel  et 
al.  V.  Wilson,  18  Louisiana  Rep.,  367. 

A  creditor  suing  out  an  attachment  against  the  effects  of  his  debtor, 
on  false  affidavits  of  non-residence,  is  liable  to  an  action,  and  the  indebt- 
edness and  affidavit  will  not  constitute  probable  cause  to  protect  him. — 
Ohio  Rep.,  vol.  9,  p.  103.     A.  D.  1840. 

A  foreign  attachment  will  not  supersede  a  prior  assignment  of  land 
by  a  foreign  insolvent. — Ohio  Rep.,  vol.  9,  p.  178. 

Cloth  purchased  for  a  coat,  carried  to  a  tailor  to  be  made  into  one,  and 
cut  out,  is  exempted  from  attachment.  —  Ordway  v.  Wildburn,  Maine  Rep.^ 
vol.  16,  p.  263.     {Ath  vol.  by  Shepley,  Counsellor  at  Law.)     A.    D.   1841. 

Where  goods  are  attached  by  an  officer  on  mesne  process,  he  is  not 
liable  to  the  suit  of  the  debtor,  while  the  lien  created  by  the  attachment 
continues,  although  he  does  not  keep  the  property  safely.  —  Baily  v.  Hall, 
Maine  Rep.,  vol.  16,  p.  408. 


ATTORNEY  GENERAL  OF  UNITED  STATES. 

By  the  act  of  congress,  September  24th,  1789,  i}  35,  it  was  declared 
that  there  shall  be  appointed  a  meet  person,  learned  in  law,  to  act  as  at- 
torney general  of  the  United  States,  who  shall  be  sworn  or  affirmed  to  a 
faithful  execution  of  his  office. 

His  duty  shall  be  to  prosecute  and  conduct  all  suits  in  the  supreme 
court,  in  which  the  United  States  shall  be  concerned,  and  give  his  advice 
upon  questions  of  law,  when  required  by  the  president  or  when  requested 
by  the  heads  of  any  of  the  departments,  touching  any  matters  that  may 
concern  their  departments. 


ATTORNEY.  99 

His  salary  shall  be  four  thousand  dollars  per  annum.  Act,  Feb.  20, 
1819,  ^  1.  The  attorney  general  of  the  United  States,  shall  at  the  re- 
quest of  the  solicitor,  advise  with  and  direct  him,  as  to  the  manner  of 
conducting  the  suits,  proceedings,  and  prosecutions  aforesaid,  and  shall 
receive  in  addition  to  his  present  salary,  the  sum  of  five  hundred  dollars 
per  annum.     Act,  29th  May,  1830,  §  10. 

The  attorney  general  shall  be  allowed  one  clerk,  whose  compensa- 
tion shall  not  exceed  one  thousand  dollars  per  annum.  Act,  20th  April, 
1818,  M. 


OF  DISTRICT  ATTORNEYS. 

There  shall  be  appointed  in  each  judicial  district,  a  meet  person, 
learned  in  the  law,  to  act  as  attorney  for  the  United  States,  in  such  dis- 
trict, who  shall  be  sworn  or  affirmed  to  the  faithful  execution  of  his  office. 
Act,  24th  September,  1789,  ^  35.  Act,  29th  April,  1802,  ^  13.  See 
acts  establishing  the  several  district  courts  since  1789. 

His  duty  shall  be  to  prosecute  in  such  district  all  delinquents  for 
crimes  and  offences  cognizable  under  the  authority  of  the  United  States, 
and  all  civil  actions  in  which  the  United  States  shall  be  concerned,  ex- 
cept before  the  supreme  court,  in  the  district  in  which  that  court  shall  be 
holden. — Ibid. 

The  several  district  attorneys  of  the  United  States,  shall,  immedi- 
ately after  the  end  of  every  term  of  the  circuit  and  district  courts  of  the 
United  States  in  their  respective  districts,  forward  to  the  solicitor  a  full 
and  particular  statement,  as  well  of  all  cases  in  which  the  United  States 
are  party,  which  are  pending  in  said  courts,  as  of  those  which  may  have 
been  decided  during  such  term,  accompanied  by  a  certificate  of  a  clerk 
of  such  court ;  and  the  solicitor  shall  make  constant  and  strict  compari- 
sons and  examinations  of  such  returns,  and  of  the  reports  made  by  the 
collectors  of  bonds  delivered  to  the  attorneys  for  suit ;  and  if  it  shall  Tap- 
pear  that  any  collector  shall  make  return  of  any  bond  as  in  suit,  or  de- 
livered for  suit,  which  is  not,  at  the  time,  in  suit,  or  delivered  for  suit,  or 
shall  return  any  bond  as  in  suit,  for  the  whole  amount  thereof,  when  part 
thereof  has  been  paid  to  him,  or  as  in  suit  for  more  than  is  actually  due 
thereon,  the  solicitor  shall  immediately  upon  discovery  thereof  communi- 
cate the  same  to  the  president.  Act,  29th  May,  1830,  §  3.  See  also,  ^ 
4,  '^  5,  ^  8.     Act,  May,  loth,  1820,  ^7. 

There  shall  be  appointed  in  the  respective  territories  of  the  United 
States,  a  person  learned  in  the  law,  to  act  as  an  attorney  of  the  United 
States,  who  shall  besides  the  usual  fees  of  office,  receive  an  annual  salary 
of  two  hundred  and  fifty  dollars,  payable  quarter-yearly  at  the  treasury. 
Act,  Feb.  27th,  1813,  ^  1. 

The  district  attorneys  for  the  following  districts  shall  be  allowed 
the  sum  of  two  hundred  dollars  per  annum,  in  full  compensation  for  all 
extra  services,  viz. :  Northern  district  of  New  York,  Act,  May,  15th  1820. 
District  of  Illinois,  Act,  March  3d,  1819.  Western  district  of  Virginia, 
Act,  Feb.  4th,  1819.  District  of  Mississippi,  Act,  April  3d,  1818.  Dis- 
trict of  Indiana,  Act,  March,  3d,  1817.     District  of  Ohio,  Act,  Feb.  19, 


100  ATTORNEY. 

1803.  East  Tennessee,  Act,  April  29th,  1802.  Kentucky,  Georgia, 
Eastern  district  of  Virginia,  district  of  Delaware,  New  Jersey,  Connecti- 
cut, Rhode  Island,  Vermont,  New  Hampshire,  Maine,  VVest  Tennessee, 
Act,  Feb.  29th,  1799.  East,  Middle,  West  and  South  Florida,  Act,  16th 
March,  182"<;.  Northern  district  of  Alabama,  Act,  March  lOlh,  1824. 
Southern  district  of  Alabama,  Act,  April  21st,  1820.  Western  district  of 
Louisiana,  Act,  March  3d,  1812.  District  of  Missouri,  Act,  March  16th, 
1812.  Western  district  of  Pennsylvania,  Act,  May,  15th,  1820.  And 
to  the  district  attorney  for  North  Carolina,  four  hundred  dollars  ;  Arkansas 
and  Michigan,  two  hundred  and  fifty  dollars  ;  for  the  Eastern  district  of 
Louisiana,  six  hundred  dollars  per  annum.     Act,  April  8th.  1812.   , 

The  compensation  to  the  attorney  of  each  district  shall  be,  for  each 
day  which  he  shall  attend  on  business  of  the  United  States,  during  the 
session  of  any  district  or  circuit  court,  five  dollars  ;  for  traveling  from 
his  place  of  abode  to  such  court,  ten  cents  per  mile  ;  and  such  fees  in 
each  state  respectively,  as  are  allowed  in  the  supreme  court  thereof;  and 
in  the  district  courts  his  fees  shall  be,  for  drawing  interrogatories,  five 
dollars;  for  drawing  and  exhibiting  libel,  claim  or  answer,  six  dollars; 
and  for  all  other  services  in  any  cause,  six  dollars.  Act,  February  28th, 
1799,  ^  4. 

The  district  attorneys,  collectors  of  the  customs,  naval  officers,  and 
surveyors  of  the  customs,  navy  agents,  receiver  of  public  monies  for  lands, 
registers  of  the  land  offices,  paymasters  in  the  army,  the  apothecaries^  gen- 
eral, the  assistant  apothecary  general,  and  the  commissary  general  of  pur- 
chases, shall  be  appointed  for  the  term  of  four  years,  but  shall  be  remova- 
ble from  office  at  pleasure  (of  the  president.)     Act,  May  15th,  1820,  \  1. 


ADxMlSSION  OF  ATTORNEYS  AND  COUNSELLORS  TO 
^  PRACTICE  IN  THE  SUPREME  COURTS  OF  THE 
UNITED  STATES. 

1.  What  is  requisite  to  the  admission   of  attorneys  and  counsellors  to 
practice  in  the  supreme  court  of  the  United  States  ? 

It  is  requisite  that  they  shall  have  been  such,  for  three  years  past 
in  the  supreme  court  of  the  state  to  which  they  respectively  belong,  and 
that  their  private  and  professional  character  shall  appear  to  be  fair.  Act, 
3d  March,  1815,^  3.  Counsellors  shall  not  practice  as  attorneys,  nor 
attorneys  as  counsellors  in  this  court. — Rule  of  Court,  Feb.  Term,  1790, 
2  Dallas,  399.  In  August,  1801,  the  court  declared  that  counsellors 
might  be  admitted  as  attorneys,  on  taking  the  usual  oath,  but  this  did  not 
mean  or  imply,  that  if  a  counsellor  was  thus  admitted  as  attorney,  he 
could  continue  to  act  as  counsellor.  He  must  make  his  election  between 
the  two  degrees.  They  shall,  respectively,  take  the  following  oath  : — 
«« I (Jo  solemnly  swear,  that  I  will  demean  myself  as  an  at- 
torney (or  counsellor)  of  the  court,  uprightly,  and  according  to  law  ;  and 
that  I  will  support  the  constitution  of  the  United  States." — Rule  of  Court, 
Feb.  Term,  1780,  1791.     Art.  607. 

In  all  the  other  courts  of  the  United  States,  as  well  as  in  the  courts 


ATTORXEY.  101 


of  New  York,  and  the  other  states,  the  same  person  can  be  admittted  to 
the  two  degrees  of  attorney  and  counsel,  and  exercise  the  power  of  each. 
By  act  of  congress,  September  24th,  1789,  ^  35,  parties  are  permitted  to 
appear  and  manage  their  own  causes  personally. 

After  the  publication  of  the  twelve  tables,  suitors  at  Rome  were 
obliged  to  resort  to  the  assistance  of  their  patrons,  and  judicial  proceed- 
ings became  the  study  and  practice  of  a  distinct  and  learned  body  of 
men.  —  Gravina,  de  Ortu  et  Prog.  Jur.  Civ.,  sec.  33.  40.  The  division  of 
advocates  into  attorneys  and  counsel  has  been  adopted  from  the  prevail- 
ing usuage  in  the  English  courts. 

The  business  of  the  former  is  to  carry  on  the  practical  and  more 
mechanical  parts  of  the  suit,  and  of  the  latter  to  draft,  or  review  and  cor- 
rect the  special  pleadings,  to  manage  the  cause  at  the  trial,  and  also  du- 
ring the  whole  course  of  the  suit,  to  apply  established  principles  of  law 
to  the  exingencies  of  the  case.  —  1  Kent's  Conun.,  307. 


PRIVILEGE  AND  AUTHORITY  OF  ATTORNEY, 
RIGHTS  OF  CLIENT,  &c. 

1.  Has  an  attorney  at  law  a  right  to  receive  a  bond  from  the  debtor  in 
discharge  of  the  claim  ? 

Not  without  the  consent  of  the  client ;  to  make  the  payment  good  it 
must  be  an  actual  payment  in  money,  nothing  short  of  which  will  bind  the 
client ;  and  if  the  attorney  apply  the  claim  in  payment  of  his  own  debt, 
the  client  is  not  bound.  —  Commissioners  v.  Rose,  1  Desaus  Rep.,  469. 
Treasurers  v.  AVDowell,  1  Hill.,  184.  Kirk  v.  Glover,  5  Stewart  <^-  Port., 
34.  Gullet  V.  Lewis,  3  Stew.,  23.  Cost  v.  Genette,  1  Porter,  212.  Craig 
V.  Ely,  5  Stew.  <Sf  Port.,  354.  Smock  v.  Dey,  5  Rand.,  639.  Herbert  v. 
Alexander,  2  Call.,  498. 

Nor  has  an  attorney  in  a  suit  any  authority  to  discharge  a  debtor 
from  execution,  on  payment  of  a  sum  less  than  the  amount  of  the  judg- 
ment.— Lewis  V.  Gamage  1  Pick.,  347.     5  Peters,  113. 

An  attorney  can  do  no  act,  in  the  management  of  an  execution,  that 
will  release  a  surety,  to  his  client's  prejudice.  —  Givens  v.  Briscoe,  3  /.  /. 
Marsh.,  534. 

He  only  represents  the  plaintiff  or  defendant  in  court,  to  do  such  acts 
as  the  plaintiff  or  defendant,  if  in  court,  might  do  himself,  but  he  has  no 
right  to  enter  into  private  or  executory  contracts. — Herbert  v.  Alexander, 
2  Call,  498. 

2.  Does  not  the  law  often  interpose  to  declare  transactions  between  at- 
torney and  client,  void,  which,  between  other  persons,  would  be  held 
valid  ? 

It  does.  The  situation  of  an  attorney  or  solicitor,  puts  it  in  his 
power  to  avail  himself,  not  only  of  the  necessities  of  his  client,  but  of  his 
good  nature,  liberality,  and  credulity,  to  obtain  undue  advantages,  bargains, 
and  gratuities,  hence'  the  law  with  a  wise  providence,  watches  over  and 


102  ATTORNEY. 

guards  the  interest  of  the  client  in  such  a  predicament.  —  Wright  v.  Proud, 
13  Ves.,  136.  Wells  v.  Middleton,  1  Coxe's  Rep.,  112,  125.  3  Peere 
Will,  131.  Wood  V.  Downes,  18  Ves.,  126.  Walmesly  v.  Booth,  2  Atk. 
Rep.,  25.  1  Fonbl.  Eg.,  b.  1,  ch.  4,  ^  12.  Barnesly  v.  Pow;e/,  1  Ves.,  284. 
Bulkleyv.  Wilford,  1   C/ar^e  cf-  i^mn's  iie/).,  102,  177  to  181. 

In  ail  such  cases,  the  law,  in  order  to  prevent  undue  advantage,  from 

the  unlimited  confidence,  afTection,  or  sense  of  duty,  which  the   relation 

naturally  creates,  requires  the  utmost  degree  of  good  faith  {uberrima fides,) 

in  all  transactions  between   the   parties  ;  not  that  the  law  considers  so 

much  the  bearing  or  hardship  of  its  doctrine  upon  particular  cases,  as  it 

does  the  importance  of  preventing  a  general  public  mischief,  which  may 

be  brought  about  by  means,  secret  and  inaccessible  to  judicial  scrutiny, 

from  the  dangerous  influences  arising  from  the  confidential  relation  of  the 

parties.— irooc?  v.  Downes,  18  Ves.,  126.     By  establishing  the  principle, 

that  while  the  relation  of  client  and  attorney  subsists  in  its  full  vigor,  the 

latter   shall  derive  no  benefit  to  himself  from  the  contracts,  or  bounty,  or 

other  negotiations  of  the  former. — Jones  v.  Tripp,  Jac.  Rep.,  322-      God- 

dard  v.  Carlisle,  9  Price's  Rep.,  169.     It  supersedes  the  necessity  of  any 

enquiry  into  the   particular   means,  extent,  and  exertion  of  influence,' in  a 

given  case  ;  a  task  often  difficult  and  ill  supported  by  evidence,  which  can 

be  drawn  from  satisfactory  sources. —  Wells  v.  Middleton,  1  Coxe's  Rep., 

125.      Wright  V.   Proud,   13  Ves.,  137.      Cheslyn    v.    Dolby,  2  Young    Sf 

Coll.,  194,  195.     Nor  indeed  is  it  necessary  to  establish  that  there   has 

been  fraud  or  imposition  practised  upon  the   client.     But  the   burthen  of 

establishing  its  perfect  fairness,  adequacy,  and  equity,  is  thrown  upon  the 

attorney.     If  no  such  proof  is  established,  the  courts   of  equity  treat  the 

case  as  one  of  constructive  fraud. —  Gibson  v.  J  ewes,  6  Ves.,  278.     Mon- 

tesque  v.  Sandys,  18  Ves.,  313.     Bellow  v.  Russell,  \  B.  6f  Beatty's  Rep., 

104,  107.     Harris  v.  Tretnenheere,  15  Ves.,  34,  39.      Cane  v.  Lord  Allen, 

2  Dow's   Rep.,  289,  299.     Jones  v.    Thomas,  2  Y.  <^  Coll.,  498.      Ormond 

v.  Hutchinson,  13  Ves.,5\.     Beaumount  v.  Boultbee,5  Ves.,  485.      Gartside 

V.  Isherwood,  1  Bro.  Ch.  R.  App.,  558,  560,  561.      Proof  v.  Mine's  Cos., 

T.  Talb.,  111.      Walmsley  v.  Booth,  2  Atk.,  29.     Oldham  v.  Hand,  2  Ves., 

259.      Wells  V.  Middleton,  1  Coxe,  112,  125.     Morse  v.  Royal,  12  Vesey, 

371.     It  is  the  general  policy  of  courts  of  justice,  in  cases  between  client 

and  attorney,  to  protect  the  client,  and  for  this  reason,  a  judgment  obtained 

by  a  solicitor  against  his  client  for  security  for  costs,  will  be  overhauled, 

even  after  a  considerable  lapse  of  time. — Newman  v.  Payne,  4  Bro.  Ch. 

R.,  350.      S.  C.  2  T^'e.^^.,  Jr.,  200.      Starr  v.  Vanderheyden,  9  Johns.,  253. 

Miles  V.  Irwin,  1  McCord,  ch.  524.     Bibb  v.  Smith,  1  Dana,  582.     Phelps 

V.  Overton,  4  Hayvx,  292.     Rose  v.  Mynatt,  7  Yerg.,  30.    Mitchell  v.  Bell, 

1  Taylor,  61.     Downing  v.  Major,  2  Dana,  228.      7  Yerg.,  30.     4  Johns. 

Ch.,  118.    Leisingring  v.  Black,  5  Watts,  303.     Langstaffe  v.  Taylor,  14 

Ves.  R.,  262.     Wood  v.  Downes,  18  Ves.,  120,  127.     Pitcher  v.  Rigby,  9 

Prince's  R.,  79.     Draper  Company  v.  Davis,  2  Atk.,  295. 

If  an  attorney  employed  by  the  party,  should  designedly  conceal  from 
his  client  a  material  fact,  or  principle  of  law,  by  which  he  should  gain  an 
interest,  not  intended  by  the  client,  it  will  be  held  a  positive  fraud,  and  he 
will  be  treated  as  a  mere  trustee  for  the  benefit  of  his  client  and  his  rep- 
resentatives.    And  in  a  case  of  this  sort,  it  will  not  be  permitted  to  the 


ATTORNEY.  103 

attorney  to  set  up  his  ignorance  of  law,  or  his  negligence,  as  a  defence  or 
an  excuse.  It  has  been  justly  remarked,  that  it  would  be  too  dangerous  to 
the  interests  of  mankind,  to  allow  those,  who  are  bound  to  advise,  and 
who  ought  to  be  able  to  give  good  and  sound  advice,  to  take  advantage  of 
their  own  professional  ignorance,  to  the  prejudice  of  others.  Attorneys 
must,  from  the  nature  of  the  relation,  be  held  bound  to  give  all  the  infor- 
mation which  they  ought  to  give,  and  not  be  permitted  to  plead  ignorance 
of  that  which  they  ought  to  know.  —  Lord  Eldoris  Judgment  in  the  House 
of  Lords,  in  Bulkley  v.  Wilfo'rd,  2  Clarke  6f  Finn's  Reports,  102,  177  to 
181,  183. 

An  attorney  or  counsellor  of  the  supreme  court,  who  is  party  to  a  suit, 
has  no  privilege  as  to  the  venue.  — ir/n_o'  v.  Burr,  20  Johns.,  274. 

The  supreme  court  will  not  assign,  as  counsel  for  a  prisoner,  one  who 
has  been  admitted  to  practice  only  in  the  common  pleas. —  Commonwealth 
V.  Knapp,  9  Pick.,  496. 

By  the  common  law,  attorneys  are  privileged  from  arrest  on  mesne 
process,  and  are  entitled  to  be  proceeded  against  by  bill. — Scott  v.  Van 
Alstyne,  9  Johns.,  216. 

An  attorney  sued  jointly  with  others  not  privileged,  is  not  entitled  to 
privilege. —  Tiffany  v.  Driggs,  13  Johns.,  252.  Gay  v.  Rogers  df  Waite, 
3  Cow.  N.  Y.  Rep.,  368.  Blanthwarth  v.  Blackhury,  4  Salk.,  544.  Or  if 
sued  jointly  with  his  wife. — Roberts  v.  Mason,  I  Taunt.,  254. 

A  counsellor  actually  attending  court  for  the  purpose  of  making  a 
special  motion,  if  arrested  on  a  ca.  sa.  during  his  attendance,  will  be  dis- 
charged from  the  arrest. — Humphry  v.  Cummins,  5  Wend.,  90. 

An  attorney  defendant  cannot,  by  plea,  waive  or  destroy  his  privilege, 
for  it  is  not  allowed  for  his  own  sake,  but  for  the  sake  of  the  court,  and 
the  suitors  in  it. —  9  Johns.,  216. 

Where  an  attorney  is  sued  in  an  inferior  court,  in  which  he  is  privi- 
leged from  arrest,  the  cause  cannot  be  removed  into  the  supreme  court  by 
habeas  corpus  cum  causa, —  Webb  v.  Cleveland,  9  Johns-,  266. 

A  counsellor  of  the  supreme  court  is  entitled  to  privilege.— 2  Caines' 
Rep.,  387. 

An  attorney  who  has  ceased  to  practise  for  one  year,  and  has  entered 
into  a  different  employment,  loses  his  privilege. — Brooks  v.  Patterson,  2 
Johns.  Cos.,  102.      Coleman,  133. 

An  attorney  is  privileged  from  arrest,  unless  privilege  be  taken  away 
by  rule,  though  he  do  not  show  that  he  has  acted  as  attorney  within  a  year. 
—  Ogden  V.  Hughes,  2  South,  718. 

A  sheriff  cannot  take  notice  of  the  privilege  of  an  attorney  or  other 
officer,  nor  can  he  discharge  him  from  his  custody  under  process  of  the 
court,  on  his  producing  a  writ  of  privilege  ;  and  if  he  do  so,  he  is  liable, 
as  far  as  an  escape,  for  the  amount  of  the  debt  and  interest.  — *Secor  v.  Bell, 
1   Wend.,  33. 

The  privilege  of  attorneys  of  inferior  courts  from  arrest,  by  process 
from  the  supreme  court,  does  not  extend  beyond  the  time  of  their  neces- 
sary attendance  on  those  courts. — Gibbs  v.  Loomis,  10  Johns-,  463. 

On  motion  to  set  aside  proceedings  against  an  attorney,  because  they 
were  as  against  a  common  person,  he  need  not  state  in  the  affidavit  that 
he  was  a  practising  attorney.     It  is  sufficient  that  he  swears  that  he  was 


104  ATTORNEV. 

an  attorney  ;  which  throws  it  on  the  other  party  to  show  that  he  had  not 
practised  within  the  year. —  Colt  v.  Gregory,  3  Cow.,  22. 

The  attorney  is  presumed  to  have  authority  to  bring  suit  in  the  man- 
ner in  which  he  prosecutes  ;  his  want  of  authority  must  be  shown. — Nor- 
ris  V.  Doughlass,  2  South,  817. 

The  attorney's  authority  to  appear  cannot  be  questioned  in  the  court 
of  appeal,  if  not  objected  to  in  the  court  helow.  — Noble  v.  Bank  of  Ken- 
tucky, 3  Marsk.,  263. 

In  general,  the  act  of  an  a-ttorney  binds  his  clients  ;  but  where  judg- 
ment had  been  entered  in  an  amicable  action,  by  agreement  of  attorneys, 
and  the  defendant  made  ^.Tidavit  that  he  had  never  employed  the  attorney 
whose  name  was  signed  to  the  agreement,  the  court  gave  the  defendant 
leave  to  contest  the  demand,  but  ordered  the  judgment  to  stand  as  security. 
—  Cox  V.  Nichols,  2  Yeates,  546. 

An  attorney  may  confess  judgment  without  authority  from  the  defen- 
dant, which  will  be  binding  upon  him. — McCullough  v.  Gouefner,  1  Bi?in. 
Penn.  Rep.,  214.  Denton  v.  Noyes,  6  Johns.  N.  Y.  Rep.,  296.  Wyckoff 
V.  Bergen,  Coxe's  N.  J.  Rep.,  214.  Morrickyuson  v.  Dorsett,  2  Harris  df 
GiWs  Md.  Rep.,  374.  If  the  attorney  has  acted  without  authority,  the 
defendant  has  his  remedy  against  him  ;  but  the  judgment  is  still  regular, 
and  the  appearance  entered  by  the  attorney,  without  warrant,  is  a  good 
appearance  to  the  court. —  1  Keble,  89.  1  Sulk.,  86.  Comyn^s  Dig.,  tit. 
Attorney  ;   [B.)  7,  (b.) 

This  rule  of  law,  though  perfectly  well  settled,  would  oftentimes  be 
unjust  in  its  operation,  if  it  was  not  so  restrained  as  to  save  the  party  who 
may  be  affected  by  it,  from  injury.  It  was,  therefore,  wisely  laid  down  by 
the  K.  B.,  in  the  time  of  Lord  Holt,  1  Salk.,  88,  that  if  the  attorney  for 
the  defendant  be  not  responsible,  or  perfectly  competent  to  answer  to  his 
assumed  client,  they  would  relieve  the  party  against  the  judgment,  for 
otherwise  a  defendant  might  be  ruined. 

Where  an  attorney  appears  for  a  party,  the  court  will  look  no  further, 
but  will  proceed  as  if  he  had  sufficient  authority,  and  leave  the  party  to 
his  action  against  him. — Hcnck  v.  Todhunter,  7  Har.  6f  J.,  275.  Harding 
V.  Hull,  5  Har.  Sf  J.,  478.  Morrickyuson  v.  Dorsett,  2  Har.  <Sf  Gill,  374. 
Jackson  v.  Stewart,  6  Johns  ,  34. 

A  plea  filed  by  a  volunteer  counsel,  not  recognized  by  the  party,  or 
his  regular  attorney,  may  be  withdrawn  on  motion,  and  a  refusal  to  allow 
it  to  be  withdrawn,  is  error.  — Be//  v.  Ursory,  4  Litt.,  334. 

In  Ohio,  a  party  is  not  concluded  by  the  acts  of  an  attorney  who  ap- 
pears without  authority  ;  and  if  no  process  has  been  served  on  the  defen- 
dant, the  court  will  set  aside  a  judgment,  even  at  a  subsequent  term,  ob- 
tain 3d  under  such  unauthorized  appearance.—  Crichfield  v.  Porter,  3  Ham. 
Rep.,  518. 

Where  the  name  of  an  attorney  of  the  court  appears  on  the  record, 
the  court  will  not  allov.  the  record  to  be  controverted.  —  Coit  v.  Sheldon,  1 
Tyler,  304.  Smith  v.  Buwditch,  7  Pick.,  137.  Sed  vide,  Hall  v.  Williams^ 
6  Pick.,  232. 

In  New  Jersey,  it  is  not  lawful  for  two  or  more  to  create  a  partner- 
ship, and  prosecute  and  defend  suits  in  the  name  of  the  firm. —  Wilson  v. 
Wilson,  2  South,  791. 


I 


ATTORNEY.  105 

A  partnership  may  exist  between  a  counsellor  at  law  and  an  attorney, 
in  their  professional  business ;  but  the  attorney  must  have  the  sole  and 
entire  superintendence  of  the  attorney's  business,  for  which  he  is  respon- 
sible ;  and  no  person,  on  the  ground  of  such  copartnership,  can  take  any 
part  in  the  conduct  of  a  suit,  whose  office  is  at  a  different  place  from  that 
of  the  attorney.— Woodward^s  Case,  4  Johns.,  289. 

A  counsellor  of  the  supreme  court  is  privileged  from  arrest  during 
the  sitting  of  the  court,  though  not  in  actual  attendance.  —  Sperry  v.  Wil- 
lard,  1    Wend.,  32.      Commonwealth  v.   Ronald,  4  Call.,  97. 

An  attorney  is  not  liable  to  imprisonment  in  an  action  for  money  col- 
lected.—  Bohanan  v.  Peterson,  9  Wend.,  503. 

Unless  an  attorney  be  so  situated,  as  to  excite  the  suspicion  of  the 
court,  (as  by  advocating  inconsistent  interests,)  his  authority  will  not  be 
questioned. —  Taliaferro  v.  Porter,  Wright,  610. 

His  authority  to  act  for  a  distant  client  continues  till  the  litigation  is 
ended,  unless  revoked  or  otherwise  ended;  but  it  cannot  be  ended  by  him- 
self alone,  to  his  client's  detriment.  —  Love  v.  Hall,  3  Yerg.,  408. 

He  cannot,  without  special  authority,  release  a  witness  who  is  liable 
over  to  his  client,  so  as  to  render  him  competent  to  testify. — Marshall  v. 
Nagel,  1  Bailey's  Rep.,  308.  Nor  assign  a  judgment. —  Heddv.  Gervairs, 
Walker,  431. 

An  attorney  who  receives  a  note  for  collection,  is  authorized  by  his 
general  retainer,  to  bring  a  second  suit  on  the  note,  after  being  non-suited 
in  the  first  for  want  of  due  proof  of  the  execution  of  the  note.— *S'coi!^  v. 
Elmendorf,  12  Johns.,  315. 

An  attorney  of  record,  in  an  action  in  which  an  erroneous  judgment 
is  rendered  against  his  client,  has  autaority,  and  it  is  his  duty,  to  sue  out 
a  writ  of  error  to  reverse  it,  without  special  instructions. — Grosvenor  v. 
Dunfort,  16  Mass.,  74. 

An  attorney  to  whom  a  creditor  confides  a  discretionary  power  to 
collect  a  debt,  may  bind  his  client  by  assenting  to  an  assignment  of  the 
debtor's  property  for  the  benefit,  of  his  creditors.  So,  he  has  authority 
to  receive  the  amount  of  a  judgment  recovered  by  his  client  to  dis- 
charge it,  and  to  permit  a  sheriff  to  renew  an  execution  in  the  name  of 
the  client,  and  to  discontinue  a  suit.  Also,  to  bind  his  client  by  recogni- 
zing in  his  name  to  prosecute  an  appeal  which  he  has  also  power  to 
claim  for  his  client.  Nevertheless,  a  general  power  to  defend  a  clause 
will  not  authorize  him  to  execute  an  appeal  bond  in  his  client's  name. — 
Holbrookes  Case,  5  Cow.,  35.  Adams  v.  Robinson,  1  Pick..  462.  Fostor 
V.  Blount,  1  Overt.,  343.  Fine  v.  Pitner,  Ibid,  299.  Gaillard  v.  Smart, 
6  Cow.,  385.  8  Greenl.,  324.  Cheever  v.  Mirrock,  2  N.  Hamp.,  376. 
Gordon  v.  Colidge,  1  Sumner,  537.  Lewis  v.  Gamoge,  1  Pick.,  347. 
Commissioners  v.  Rose,  1  Desaus,  469.  Canterbury  v.  Commonv:ealth,  1 
Dana,  416.  Wilson  v.  Stokes,  4  Mumf.,  455.  Branch  v.  Burnley,  1 
Call.,  147.  Brackett  v-  Norton,  4  Conn.,  517.  Langdon  v.  Potter,  13 
Mass.,  320. 

If  the  client  receive  the  execution  into  his  own  hands,  and  pay  the 
attorney   his  costs,   the   power   of  the   attorney  ceases,   and  he  will  no 
longer  be  authorized  to  receive  the  money  due  on  the  execution. — Parker 
V.  Downing,  13  Mass.,  465. 
14 


106  ATTORNEY. 

A  defendant  who  pays  money  to  one  of  the  attorneys  in  a  cause, 
who  is  not  the  attorney  on  record,  and  who  afterwards  absconds,  after 
notice  to  the  contrary,  pays  it  in  his  own  wrong. — Wurt  v.  Lee,  3  Yeates' 
Rep.,  7.  ' 

The  general  authority  of  the  plaintiff's  attorney  ceases  with  the  judg- 
ment, or  at  least  with  the  issuing  of  an  Execution  within  the  year.  —  Jack- 
son V.  Bartlett,  3  Johns.,  361.      5  Pet.,  113. 

The  acknowledgment  of  satisfaction,  or  a  discharge  of  a  judgment 
by  an  attorney  binds  his  client.—  Wycoff  v.  Bergen,  Cox,  214. 

But  the  plaintiff's  attorney  from  his  general  character  of  attorney, 
has  no  authority  to  discharge  the  defendant  from  execution  on  a  ca  xa 
without  satisfaction.  — /acAi'orj  v.  Bartlett,  8  Johps.,  361.  5  Pet.,  113. 
Kellog  V.  Gilbert,  10  Johns.,  220.  Nor  to  release  the  sureties  of  his 
client's  debtor. — Givens  v.  Briscoe,  3  J.  J.  Marsh.,  532. 

Nor  to  make  his  clients  the  bailiffs  of  their  debtors,  by  receiving  se- 
curities to  collect  and  thereby  to  render  them  liable  to  an  action  of  ac- 
count.— Langdon  V.  Potter,  13  Mass.,  320. 

Although  the  authority  of  an  attorney  at  law  ceases  with  the  judg- 
ment, yet  payment  to  the  attorney  is  now  settled  to  be  payment  to  the 
party. —  Commissioners  v.  Rose,  1  Desaus,  469.  Treasurers  v.  McDowal, 
1  Hill,  184. 

The  plaintiff's  attorney  has  authority  under  bis  general  warrant,  to 
direct  the  sheriff  as  to  the  time  and  manner  of  enforcing  the  execution. — 
Gorham  v.  Gale,  7  Cow.,  739.  Lynch  v.  Commonwealth,  16  S.  d^  R-,  368. 
Erwin  v.  Blake,  8  Pet.,  18. 

A  plaintiff's  attorney  cannot  under  his  general  authority,  purchase 
land,  sold  under  an  execution  issued  in  the  cause  for  the  benefit  of  his 
client,  and  as  his  trustee.  —  Beardsley  v.  Root,  11  Johns.,  464. 

When  an  execution  is  levied  on  land,  the  debtor  may  pay  the  debt, 
&c.  to  the  plaintiff's  attorney,  at  any  time  before  the  year  has  elapsed, 
and  such  payment  will  bind  the  judgment  creditor.  —  Gray  v.  Wass,  1 
Greenl,  257.     Erwin  v.  Blake,  8  Pet.,  18. 

The  authority  of  an  attorney  determines  when  judgment  is  obtained  : 
if,  however,  he  afterwards  receive  money,  he  may  acknowledge  satisfac- 
tion on  the  record,  but  he  will  not  be  permitted  to  compromise  hisxlient's 
rights  by  any  executory  contract,  or  any  voluntary  act  of  his  own.  —  Trea- 
surers V.  McDowal,  1  HilVs  Rep.,  184- 

The  possession  of  a  note  is  prima  faci(B  evidence  of  property  therein, 
although  it  is  payable  to  another  and  not  endorsed :  as  if  one  confide  the 
collection  of  a  note  to  an  agent,  and  he  put  it  in  the  hands  of  an  attorney 
to  collect,  with  directions  to  pay  the  proceeds  in  satisfaction  of  a  debt  due 
by  him  (the  agent)  to  a  stranger,  and  the  attorney  do  so  without  notice  of 
the  agency  ;  the  principal  is  not  entitled  to  recover  the  amount  from  the 
attorney.  —  Penny  v.  Caldwell,  1  Bail.  Rep.,  345. 

A  promissory  note  given  as  a  fee  to  a  solicitor  in  equity  for  manag- 
ing a  suit  in  equity,  may  be  apportioned  when  the  solicitor  died  before 
the  termination  of  the  suit  ;  and  his  representatives  will  be  limited  to  the 
recovery  of  such  proportion  of  the  amount  of  the  note  as  the  services  ac- 
tually rendered  bear  to  the  whole,  which  were  to  be  performed  in  consid- 
eration of  the  note. —  Clendinen  v.  Black,  2  Bail.  Rep.,  488. 


ATTORNEY.  107 

In  suits  requiring  great  professional  labor,  where  much  time  must  ne- 
cessarily be  consumed,  and  diligence  and  skill  required  in  the  preparation 
and  management  of  them,  an  attorney  may  rightfully  and  legally  charge, 
by  way  of  council  fee,  a  sum  proportioned  to  the  value  of  the  services, 
and  which  a  jury,  upon  evidence  before  them,  are  competent  to  ascertain 
and  decide  upon. — Duncan  v.  Breithaupt  Sf  Huger,  1  McCord's  R-,  149. 

The  attorney  on  record,  canTiot  without  special  authority,  execute  a 
valid  release  to  one  who  is  liable  over  to  his  client,  in  order  to  render  him 
a  competent  witness. —  Marshall  v.  Nagle  t^  Thompson,  1  Bail,  i?.,  308. 

An  attorney  who  has  recovered  judgments  in  behalf  of  his  client 
against  the  drawer  and  endorser  of  a  note,  has  no  authority  as  such  attor- 
ney, upon  payment  of  the  debt  by  the  endorser,  to  assign  over  to  him  the 
judgment  against  the  drawer,  his  agency  extends  no  farther  than  to  sue 
for  and  recover  the  debt,  and  receive  the  moneys. — Noonan  v.  Gray,  1 
Ibid,  437. 

An  attorney  gave  a  receipt  for  certain  notes  for  collection,  and  after 
his  death  an  action  was  brought  against  his  executors  for  monies  had  and 
received,  and  the  receipt  was  the  only  evidence  relied  on  to  charge  the  tes- 
tator's estate.  It  was  adjudged  that  this  evidence  was  insufficient,  and  the 
plaintiff  was  bound  to  prove  the  actual  receipt  of  money  or  other  pay- 
ments or  a  discharge  by  the  attorney  on  account  of  the  notes.  —  Khun  <^ 
Faust  V.  Executors  of  Hunt,  Brev.  Mss.  Rep. 

A  compromise  acquiesced  in  for  years  by  the  principal,  will  bind  him 
for  ever. — Mayor  v.  Foulkrod,  4  Wash-  C.  C,  511. 

A  ratification  of  the  proceedings  of  an  attorney  in  a  suit,  if  made 
without  full  knowledge  of  all  the  material  facts,  will  not  bind  the  client. 
—  Williams  v.  Reed,  3  Mason,  405. 

Verbal  authority  to  appear  in  a  cause  is  not  sufficient  to  enable  an 
attorney  to  release  the  interest  of  a  witness.  — ikTwrfoy  v.  House,  11  Johns. 
Rep.,  464. 

It  is  held  in  Kentucky,  that  an  attorney's  power  ceases  when  judg- 
ment is  obtained,  and  that  he  has  no  authority  to  revive  or  reverse  the 
judgment  without  anew  warrant  of  attorney.— Richardson  v.  Talbott,2 
Bibb.,  382. 

In  Maine  an  attorney's  authority  continues  till  the  judgment  is  satis- 
fied.— Gray  v.  Wass,  1  Greenl.,  257. 


DUTIES  AND  LIABILITIES  OF  ATTORNEY. 

L  Is  not  an  attorney  bound  to  use  care,  skill  and  integrity  in  his  pro- 
fession ? 

He  is,  and  if  he  be  not  deficient  in  any  of  these  essential  requisites, 
he  is  not  responsible  for  any  error  or  mistake  arising  in  the  exercise  of 
his  profession.  — 4  Burr.,  2061,  anti  see  4  B.  S^  A.,  202.  3  Barn.  Sf 
Ores.,  738.  5  Dowl.  ^  Ryl,  635.  S.  C.  1  Ry.  <^  Mo.,  317.  2  Car. 
df  P.,  113,  S.  C.  To  use  the  words  of  Lord  Mansfield  in  the  case  of 
Pitt  V.  Yalden,  "  that  part  of  the  profession  which  is  carried  on  by  attor- 
neys is  liberal  and  reputable,  as  well  as  useful  to  the  public,  when  they 


108  ATTORNEY. 

conduct  themselves  with  honor  and  integrity  ;  and  they  ought  to  be  pro- 
tected, where  they  act  to  the  best  of  their  skill  and  knowledge  ;  but  every 
man  is  liable  to  error."  And  his  lordship  added,  "  he  should  be  very 
sorry,  that  it  should  be  taken  for  granted,  that  an  attorney  is  answerable 
for  every  error  or  mistake,  and  liable  to  be  punished  for  it,  by  being  char- 
ged with  the  debt  sued  for.  A  counsel  may  mistake  as  well  as  an  at- 
torney, yet  no  one  will  say  that  a  counsel  who  has  been  mistaken,  shall  be 
charged  with  the  debt.  The  advice  of  a  counsel  is  indeed  honorary,  and 
he  does  not  demand  a  fee  for  it ;  the  attorney  may  demand  a  compensa- 
tion ;  but  neither  of  them  ought  to  be  charged  with  the  debt  for  a  mistake. 
Not  only  counsel,  but  judges  may  differ,  or  doubt,  or  take  time  to  con- 
sider ;  therefore  attorney  ought  not  to  be  liable,  in  cases  of  reasonable 
doubt." 

But  in  ordinary  cases,  if  an  attorney  be  deficient  in  skill  or  care,  by 
which  a  loss  arises  to  his  client,  he  is  liable  to  a  special  action  on  the 
case  for  damages.— 2  Wills.,  325.  8  Moore,  340.  1  Bing.,  347.  S.  C. 
Eccles  V.  Stevenson,  3  Bibb.,  517.  Crookerv.  Hutchinson.  2  Chip.,  117. 
Dearborn  v.  Dearborn,  15  Mass.,  316.  Huntington  v.  Rumnil,  3  Day,  390. 
Bracket  v.  Norton,  4  Conn.,  517.  And  whenever  an  attorney  disobeys 
the  lawful  instructions  of  his  client,  and  a  loss  ensues,  the  attorney  is  re- 
sponsible for  the  loss. —  Gilbert  v.  Williams,  8  Mass.,  51.  And  where 
two  attorneys  are  in  partnership,  and  one  does  the  business  of  a  client 
unskilfully,  both  are  liable  to  him  in  damages. —  Warner  v.  Griswold,  8 
Wend.,  665.  And  a  demand  on  one  is  a  demand  on  both. — McFarland  v. 
Crary,  8  Coxd.,  253.  But  where  a  loss  ensues  to  the  client  by  negligence 
of  the  attorney,  damages  are  to  be  measured  by  the  amount  of  the  loss 
actually  sustained,  and  not  by  the  nominal  amount  of  the  demand  in  col- 
lection. And  any  fact  which  will  tend  to  reduce  the  value  of  the  debt 
below  the  nominal  amount  is  proper  to  be  considered  by  the  jury. — 
Crooker  v.  Hutchinsen,  2  Chip.,  117.  Eccles  v.  Stephenson,  3  Bibb.,  517. 
In  a  suit  against  him  for  such  loss,  the  attorney  may  show  that  the  plaintiff 
had  another  remedy,  which  he  has  successfully  pursued. — Huntington  v. 
Rumiiill,  3  Day,  390. 

Where  the  evidence  of  a  debt  then  due  is  left  with  an  attorney,  who 
gives  a  general  receipt  for  it,  it  will  be  presumed  that  he  received  it  for 
the  purpose  of  collection,  and  if  any  action  be  brought  against  him  for  his 
negligence,  by  which  the  debt  was  lost,  it  is  incumbent  on  him  to  show 
that  he  received  it  for  some  other  purpose. — Executors  of  Smedes  v.  El- 
mendorf,  3  /.  R.,  185.  In  all  cases,  whether  there  has  been  negligence 
or  not,  the  onis  probandi  that  diligence  would  have  been  ineffectual,  lies 
on  the  defendant, — -Browne  v.  Digglos,  2  Chitty''s  Rep.,  311.  But  an  at- 
torney is  not  bound  to  proceed  in  a  suit  unless  the  client  pays  his  costs  ; 
nor  will  the  court  compel  him  to  proceed  without  his  costs  are  paid  or 
secured.— Ca^iro  v.  Bennet,  2  /.  R.,  296.  Gleason  v.  Clarke,  9  Cowen's 
Rep.,  57. 

Where  an  attorney  receives  a  demand  for  collection,  and,  without  the 
clients  knowledge  delivers  it  to  another  attorney,  who  collects  and  fails  to 
pay  it  over,  the  first  attorney  is  liable  for  the  money.  — Pollord  v.  Rowland, 
2  Blackf.,  22.  And  where  an  attorney  appears  and  defends  for  another, 
and  receives  money,  as  attorney,  due  to  his  assumed  client,  in  an  action 


ATTORNEV.  109 

by  the  latter  against  the  former,  he  is  estopped  to  deny  that  he  is  attorney. 
— McFarland  v.  Creary,  8  Cotv.,  253. 

If  a  party  suffer  any  injury  by  an  attorneys  appearing  for  him  without 
authority,  he  has  a  remedy  by  action  against  the  aUorney.—  Coit  v. 
Sheldon,  1  Tyler,  304.  Field  v.  Gibbs,  Meters'  C.  C,  155.  Smith  v. 
Bowditch,  7  Pick.,  138.  Manicuyson  v.  Dorsett,  2  Bar.  c^  Gill.,  374. 
In  England,  the  court  in  some  cases,  will  order  an  attorney  to  pay  costs 
to  his  own  client  for  neglect. — Say  Rep.,  50.  172.  3  Taunt.,  484.  And 
see  4  Moore,  171.  Or  to  the  opposite  party  for  vexatious  and  improper 
conduct.— 2  Burr.,  654.  And  see  Hull.  Costs,  2nd  edition,  485,  ^c.  4 
Durnford  ^  East,  371.  3  Taunt.,  492.  1  Chit.  Rep.,  44.  80.  5  Barn. 
4"  Aid.,  533.  1  Dowl  <^  Ryl.,  142.  5".  C.  3  Bing.,  423.  Where  an 
attorney  undertook  to  procure  the  attendance  of  material  witnesses  and  in 
consequence  of  neglect,  the  plaintiff  was  non-suited  ;  the  attorney  was 
held  liable  for  damages  which  ensued  by  such  neglect.  — i^ecye  et  al.  v. 
Rigby,  4  B.  Sf  A.,  202.  In  an  action  against  an  attorney  for  negligently 
preparing  the  memorial  of  an  annuity,  whereby  the  purchaser  lost  his  se- 
curity, Lord  Ellenborough  held  that  an  attorney  was  not  only  liable  for 
crassa  negligentia — and  that  if  he  mistakes  where  there  was  a  reasonable 
doubt  of  the  law  upon  the  subject,  he  is  not  liable. — Kakie,  Esq.  v.  Chan- 
dless,  Gent,  one,  (Sfc,  3  Campb.,  17.  It  is  not  usual,  however,  for  the  court 
to  interfere  in  a  summary  way,  for  a  mere  breach  of  promise,  where  there 
is  nothing  criminal  ;  or  on  acconnt  of  negligence  or  unskilfulness,  except 
it  be  very  gross  ;  or  for  the  misconduct  of  an  attorney,  independantly  of 
his  profession.— 2  Wils.,  371,  2  Moore,  665.  1  Bing.,  102.  105.  4 
Burr.,  2060.  2  Black.  Rep.,  780.  1  Chit.  Rep.,  651,  2.  Say  Rep.,  50. 
169.     4  Barn.  <Sf  Aid.,  47.     2  Chit.  Rep.,  68.      1  Bmg.,  91. 

An  attorney  is  not  liable  to  imprisonment  in  an  action  for  monies 
collected  ;  if  the  plaintiff  seeks  to  imprison  him,  he  must  proceed  by  at- 
tachment as  for  contempt.  —  Bohanon  v.  Paterson,  9  Wend.,  503.  Nor  is 
he  liable  to  be  sued  for  money  collected  for  another,  till  demand  made, 
or  orders  to  remit ;  he  is  in  no  default  until  he  receives  orders  from  his 
principal. —  Taylor  v.  Armisted,  3  Call.,  200.  Taylor  v.  Bates,  5  Cowen, 
376.  Ferguson's  Case,  6  Cow.,  596.  Staples  v.  Staples,  4  Greenl.,  533. 
Contra,  Cofin  v.  Coffin,  7  Greenl.,  298. 

Where  an  attorney  is  liable  for  a  debt  lost  by  his  negligence,  he  is 
chargeable  for  the  principal  of  the  debt  so  lost,  but  not  with  interest  there- 
on.— Rootes  V.  Stone,  2  Leigh.,  650. 


OF  PRIVILEGED  COMMUNICATIONS,  &c.,  TO  AN  ATTOR- 
NEY AND  WHEN  HE  MAY  BE  A  WITNESS  IN  HIS 
CLIENT'S  CAUSE,  &c. 

1.  Can  communications  made  to  an  attorney,  in  his  professional  capa- 
city, by  an  owner  of  property,  respecting  a  tranfer  of  it  be  disclosed  in 
evidence  by  the  attorney  ? 

They  cannol.— Foster  v.   Hall,  12  Pick.,  89.     S.  P.   Beltzhoover  v. 
Blackstock,  3  Watts,  20. 


110  ATTORNEY. 

A  counsel,  attorney  or  solicitor,  shall  not  be  required  nor  permitted 
to  divulge  any  matter  communicated  to  him  in  professional  confidence. 
The  privilege  is  not  that  of  the  attorney,  but  of  the  client. — Parker-  v. 
Carter,  4  Mum/.,  273.  Rhoades  v.  Selin,  4  Wash.  C.  C,  718.  Heister 
V.  Davis,  3  Yeates,  4.  Yordan  v.  Hess,  13  Johns.,  492.  Chirac  v.  Rein- 
icker,  11  Wheaton,  280.  Rogers  v.  Dare,  Wright,  136.  Crawford  v. 
McKissack,  1  Porter,  433.  The  English  law  is  the  same  even  where  the 
attorney  is  not  a  party  to  the  cause  before  the  court, — Rex  v.  Withers,  2 
Ca?npb.,  578.  The  same  where  confidential  comunications  are  made 
through  the  medium  of  an  interpreter. —  Dm  Barrels  Case,  cited  Wilson  v. 
Rastal,  4  T.  R.,  756.  Nor  can  he  be  examined  as  to  propositions  he 
has  been  instructed  to  make.  —  Gainsford  v.  Grammer,  2  Campb.,  9.  Nor 
is  an  attorney  obliged  to  expose  his  client  to  be  taken  in  execution  after 
judgment  by  informing  the  plaintiff  where  he  resides. —i/ooper  v.  Har- 
court,  1  H.  B.,  534.  Nor  can  an  attorney  be  compelled  to  produce  deeds 
or  papers  intrusted  to  him  by  his  client  in  order  to  support  an  indictment 
for  forgery  against  him. —  The  King  v.  Dixon,  3  Burr.,  1687.  The  confi- 
dence reposed  in  the  counsel  must  be  preserved  for  ever. —  Wilson  v.  Ras- 
tall,  4  T.  R.,  756.  And  professional  confidence  extends  to  any  person 
employed  to  manage  a  cause  as  counsel. — Bean  v.  Quimby,  5  New  Hamp. 
Rep.,  94.  In  this  case  the  plaintiff  called  one  NichoUs  as  a  witness,  who 
acted  as  attorney,  and  whose  name  was  entered  on  the  docket  as  such, 
and  proposed  to  enquire  as  to  communications  made  to  him  by  the  defen- 
dant in  error.  Per.  Cur.,  it  is  contended  on  behalf  of  the  plaintiff  in  error, 
that  the  privilege  of  clients  to  have  their  communications  to  counsel  kept 
secret  extends  only  to  communications  made  to  professional  men,  and  not 
to  those  made  to  any  other  description  of  persons,  whom  they  may  choose 
to  employ  to  manage  a  cause.  But  we  are  inclined  to  think  that  the  law 
is  not  so  in  this  state. 

The  statute  of  February  17th,  1791,  enacts,  "  that  the  plaintiff  or 
defendant,  in  any  cause,  prosecution,  or  suit,  being  a  citizen  of  this  state, 
may  appear,  plead,  or  defend,  in  his  proper  person,  or  by  such  other  citi- 
zen of  this  state,  being  of  good  and  reputable  character  and  behavior,  as 
he  may  engage  and  employ,  whether  the  person  so  employed  be  admitted 
as  an  attorney  at  law  or  not."  This  statute  gives  in  express  terms,  to 
every  citizen  of  this  state,  the  right  to  have  his  cause  managed  by  any 
person  of  good  moral  character,  whom  he  may  see  fit  to  employ  ;  and  we 
think  this  right  includes,  as  a  necessary  incident,  without  which  it  cannot 
be  safely  employed,  the  right  to  instruct  those  who  may  be  thus  employed, 
and  to  have  the  trust  and  confidence  thus  reposed,  preserved  inviolate  in 
all  cases  ;  and  this  restriction  is  not  confined  to  facts  disclosed,  in  relation 
to  suits  actually  depending  at  the  time,  but  extends  to  all  cases  in  which 
a  client  applies  to  his  counsel  or  attorney  for  his  aid  in  the  line  of  his 
profession  ;  and,  as  has  been  previously  remarked,  this  confidence  must 
be  preserved  forever.  — Parser  v.  Carter  et  al.,  4  Mumf.  Va.  Rep.,  p.  273. 
Wilson  V.  Restal,  4  T.  R.,  756.  A  mere  gratuitous  communication  may 
be  disclosed,  —  Cobden  v.  Hendrick,  4  Term  Rep.,  431.  And  so  it  may  be 
where  the  attorney  is  not  in  professional  confidence. — Rex  v.  Watkinson, 
H  Stra.,  1122.  Or  where  the  witness  does  not  act  in  the  capacity  of  an 
attorney  or  clerk  in  court. — 2  Petersdorf,  568.     It  has  been  decided  that 


ATTORNEY.  Ill 

he  may  be  examined  as^to  the  time  of  the  execution  of  a  deed.— Lor^f 
Sai/s  Case,  10  Mod.,  41.  Or  if  the  deed  be  lost,  to  prove  the  contents  of 
it.  —  Robson  et  al.v.  Kemp,  A  East,  235.  So,  a  counsel  may  be  asked 
whether  he  had  been  retained  by  a  party  as  counsel  or  attorney,  but  ho 
cannot  be  asked  what  claim  or  title  he  was  employed  to  maintain.  —  Chirac 
V.  Reinicker,  11   Wheat.,  280. 

He  may  be  required  to  disclose  the  name  of  his  client,  in  any  par- 
ticular suit;  but  not  to  testify  concerning  the  situation  of  an  instrument  at 
the  time  it  was  placed  in  his  hands  to  be  put  in  suit.  —  Browne  v.  Pay  son, 
6  N.  Hamp.,  443.     Baker  v.  Arnold,  1   Caines,  258. 

But  if,  after  the  relation  of  attorney  and  client  has  ceased,  the  client 
voluntarily  repeat  to  the  attorney  what  he  had  communicated  while  that 
relation  existed,  the  attorney  is  a  competent  witness  as  to  this  communica- 
tion.—  Yordon  v.  Hess,  13  Johns.,  492. 

An  attorney  or  counsel,  who  as  such,  has  been  entrusted  with  papers, 
is  not  bound  to  produce  them  in  evidence,  on  the  call  of  the  opposite  party, 
or  of  a  third  person. — .Tackson  v.  Bnrtiss,  14  Johns.,  391.  Lyiide  v.  Judde, 
3  Day,  499.     Durkee  v.  Leland,  4   /erm.,  612. 

Yet  he  may  be  called  on  to  prove  the  existence  of  such  papers,  and 
that  they  are  in  his  possession,  so  as  to  enable  the  opposite  party,  on  the 
attorney's  refusal  to  produce  them,  to  give  parol  evidence  of  their  contents. 
—  Rhoades  v.  Selin,  4  Wash.  C.  C,  718.  Brandt  v.  Klein,  17  Johns.  R., 
335.      Jackson  v.  McVey,  18  Johns.,  330. 

Attorneys  are  bound  to  testify  as  to  any  matter  concering  their  clients, 
which  has  come  to  their  knowledge  in  any  other  way  than  by  confidential 
communication. — Rhoades  v.  Selin,  4  Wash.  C.  C,  718.  Rodgers  v.  Dare, 
Wright,  136.  And  as  to  the  handwriting  of  his  client,  if  a  knowledge 
thereof  is  acquired  without  any  communication  from  \\in\.— Johnson  v. 
Daocrne,  19  Johns.,  134. 


ATTORNEY'S  LIEN. 

1.  Has  not  an  attorney  a  lien  on  a  judgment  recovered  for  his  costs  ? 

He  has  ;  and  if  the  defendant,  after  notice  from  the  attorney,  pay  the 
amount  of  the  judgment  to  the  plaintiff,  without  satisfying  the  attorney  for 
his  costs,  it  is  in  his  own  wrong,  and  he  is  liable  to  the  attorney  for  the 
amount  of  his  bill. — Power  v.  Kent,  1  Cow.,  172.  Pindar  v.  Morris,  3 
Caines,  165.  Ten  Broeck  v.  Dewitt,  10  Wend.,  617.  Martin  v.  Jlawkes, 
1 5  Johns.,  405.  And  the  attorney's  right  of  lien  is  paramount  to  the  rights 
of  the  parties  in  the  suit  to  have  mutual  executions  set  off  against  each 
other. —  Grant  v.  J{azeltine,2  New  Hamp.  Rep.,  541.  Sharpleyv.  Bellows, 
4  N.  H.  R.,  347.  Dunklee  v.  Lock,  13  Mass.  R.,  525.  Martin  v.  Hanks, 
15  Johns.  N.  Y.  Rep.,  405.  Baker  v.  Cooke,  11  Mass.  R.,  236.  But  he 
has  no  lien  on  a  judgment  that  can  vary  the  rights  of  third  persons.—  Rum- 
rill  V.  Huntington,  5  Day^s  Com.  R.,  163.  Bacon  v.  Warner,  1  Root,  349. 
Williams  v.  Smith,  2  Root,  464.  Before  judgment,  the  client  may  settle 
the  action,  and  discharge  the  other  party,  without  the  attorney's  consent, 
or  reference  to  his  claim  for  fees,  &c.  —  Foot  v.   Tewksbury,  2  Verm.,  97. 


112  ATTORNEY. 

Getchell  v.  Clarke,  5  Mass.,  309.  Potter  v.  Mayo,  3  Greenleaf,  34.  An 
attorney  at  law  has  a  lien  upon  the  debt  which  he  has  prosecuted  to  judg- 
ment for  bis  fees,  viz. :  for  the  term  attorney  and  travel  fees,  and  for  all 
money  expended  by  him  in  prosecuting  the  suit.  —  Heartt  v.  Chipman,  2 
Aik.,  162. 

In  Pindar  V.  Morris,  3  Caines'  N.  Y .  R.,  165,  it  was  held  by  he  court, 
that  where  the  defendant  has  bona  fide  paid  the  debt  and  costs  to  the  plain- 
tiff, the  court  will  order  satisfaction  to  be  entered  upon  the  judgment, 
tliough  the  costs  of  the  plaintiff's  attorney  have  not  been  paid.  He  has 
no  lien  upon  them  while  in  the  hands  of  the  defendants,  unless  he  gives 
notice  not  to  pay  them  over. — Vide  Lake  v.  Ingraham,  3  Vermont  R.,  149, 
where  the  court  held,  that  the  notice  need  not  be  personal.  Any  notice  to 
him,  which  is  of  a  character  to  obtain  credit  in  ordinary  circumstances, 
that  the  lien  will  be  insisted  upon,  is  sufficient,  and  a  subsequent  payment 
and  settlement  would  not  do  away  the  lien.  But  the  notice  does  not  pre- 
vent the  parties  from  abandoning  the  suit. — Frost  v.  Tewsbury,  2  Vermont 
Rep.,  97.  It  is  held  in  England,  to  give  an  attorney  his  lien,  his  warrant 
should  have  been  filed. —  Vansanden  Gent.,  one,  <^c.  v.  Burt,  Gent.,  one, 
cj-c,  1  D.  <Sf  R.,  168. 

An  attorney  cannot  recover  against  his  client  the  costs  of  a  suit,  in 
which  judgment  is  set  aside  for  irregularity  committed  by  himself,  nor  the 
costs  of  opposing  the  motion  to  set  aside  the  proceedings  ;  nor  can  he  re- 
cover for  money  paid  for  his  client,  if  it  were  paid  to  satisfy  costs  of  a 
judgment  of  discontinuance,  suffered  by  his  ignorance  or  neglect. — Hap- 
ping v.  Quin,  12  Wend.,  517.  The  court  will  protect  the  attorney's  lien 
for  costs  to  the  same  extent  as  it  would  the  rights  of  a  consignee. — Bradt 
v.  Koon,  4  Cow.,  416. 

An  attorney  has  a  lien  on  his  client's  papers  in  his  possession,  for  his 
costs. — St.  John  V.  Diefcndorf,  12  Wend.,  261. 

In  Massachusetts  and  Maine,  an  attorney's  lien  on  a  judgment  is  given 
by  statute  only. — Baker  v.  Cooke,  11  Mass.,  236.  Potter  v.  Mayo,  3  Green- 
leafs  Rep.,  34. 


ATTORNEY  CANNOT  BE  BAIL. 

It  is  a  general  rule  of  the  court  of  King's  Bench,  that  no  attorney  of 
that,  or  any  other  court,  shall  be  bail,  in  any  action  depending  in  that  court. 
And  the  rule  applies,  though  the  person  be  not  an  attorney  in  the  same 
cause.  But  the  rule  is  confined  to  practising  attornies. — 1  Chitt.  Rep., 
714,  note.  Petersdorff^s  Abr.,  vol.  2,  p.  572.  In  the  case  of  Coster  v. 
Watson,  15  Johns.  N.  Y.  Rep., p.  535,  the  court  adopted  the  English  rule. 
The  rule  prohibiting  attorneys  becoming  bail,  extends  to  their  clerks.— 
Boulogno  V.  Vantrim,  Cowp.  Rep.,  82S.  Laing  v.  Cundale,  1  H.  Blac,  76. 
And  whether  they  be  articled  or  not. —  Cukish  v.  Ross,  1  Taunt.,  164. 
Doug.,  466.  2  East,  182.  And  see,  2  H.  Blac,  349.  1  Boss.  iSf  Pull, 
356.  2  Bossan.  ^  Pull,  49,  564.  1  Taunt.,  162,  164.  C.  P.  3  Price, 
263,  in  scac.  This  rule  was  intended  to  protect  attorneys  and  their  clerks 
against  the  importunities  of  their  clients. 


UCSOUTHtRNRtGIONAL  UBHAHY  f  ACUITY 


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